Join me as I host a one-hour webinar and conference call regarding post-election healthcare policy. The program/call is set for Wednesday, December 14 at 1:00 PM EST/noon CST.
With uncertainty looming, providers are wondering what will change as the Inauguration approaches and a new Congress settles in. We will review the ACA, Medicaid and Medicare, and related policy issues including;
- Value Based Purchasing
- CMS Center for Innovation/Alternative Delivery Models/Bundled Payments
- Additional Quality Measures and Quality Reporting
- Inter-Program and Payment Reform – Rate Equalization for Post-Acute Providers
- IMPACT Act
- ACO Expansion
The program is sponsored by HCPro and the registration link is below;
We knew that sooner or later, the first Tuesday in November would arrive and with that, a new President and changes (many or few) to Congress. The outcome certain, we move to uncertainty again concerning “what next”?…or as applicable here, what next from a health policy perspective.
With Donald Trump the incoming President-Elect, only so much from a policy perspective is known. Hillary Clinton’s path was easier to divine from a “what next” perspective as fundamentally, status quo was the overall direction. Trump’s likely direction and thus, changes to current policy, etc. are hazy at best. Thematically, there are points offered throughout the campaign that give some guidance. Unfortunately, much that drives current reality for providers is more regulatory begat by legislative policy than policy de novo.
Without divining too much from rhetoric, here’s what I think, from a health policy perspective, is what to expect from a Trump Administration.
- ObamaCare: Trump ran on a theme of “repeal and replace” ObamaCare aka the Affordable Care Act. This concept however, needs trimming. Repealing in total, existing federal law the magnitude of the ACA is difficult if not nearly impossible, especially since implementation of various provisions is well down the road. The ACA and its step-child regulations are tens of thousands of pages. Additionally, even with a Republican White House and Republican-majority Congress, the Congressional numbers (seats held) are not enough to avoid Democratic Senate maneuvers including filibuster(s). This means that the real targets for “repeal and replace” are the insurance aspects namely the individual mandate, Medicaid expansion, certain insurance mandates, the insurance exchanges, a likely the current subsidy structure(s). The other elements in the law, found in Title III – Improving the Quality and Efficiency of Health Care, will remain (my prediction) – too difficult to unwind and not really germane to the “campaign” promise. This Section (though not exclusively) contains a slew of provisions to “modernize” Medicare (e.g., value-based purchasing, physician quality reporting, hospice, rehab hospital and LTACH quality reporting, various payment adjustments, etc.). Similarly, I see little change made, if any to, large sections of Title II involving Medicaid and Title IV involving Chronic Disease. Bottom line: The ACA is enormous today, nearly fully intertwined in the U.S. health care landscape and as such, too complex to “wholesale” eliminate and replace. For readers interested in exploring these sections (and others) of the ACA, a link to the ObamaCare website is here http://obamacarefacts.com/summary-of-provisions-patient-protection-and-affordable-care-act/
- Medicaid: The implications for Medicaid are a bit fuzzier as Trump’s goals or pledges span two distinct elements of the program. First, Trump’s plan to re-shape ObamaCare (repeal, etc.) would eliminate Medicaid expansion. As mentioned in number 1 prior, this is a small part of the ACA but a lipid test for Republican governors, especially in states that did not embrace expansion (e.g, Wisconsin, Kansas, etc.). Second, Trump has said that he embraces Medicaid block-grant funding and greater state autonomy for Medicaid programmatic changes (less reliance on the need for states to gain waivers for coverage design, program expansion, etc.). It is this element that is vague. A series of questions arise pertaining to “policy” at the federal level versus funding as block grants are the latter. The dominant concern is that in all scenarios, the amount of money “granted” to the states will be less than current allocations and won’t come with any matching incentives. With elimination of the expansion elements, how a transition plan of coverage and care will occur is a mystery – federal assistance? state funding mostly? What I do predict is that Medicaid will only suffer the setback of a restructure and replacement of the Medicaid expansion elements under the ACA. I don’t see block grants happening any time soon as even Republican governors are opposed without a plan for wholesale Medicaid programmatic reform. Regardless of the approach, some initial Medicaid changes are in the offing, separate from the Block Grant issue. The Medicaid Expansion issue is no doubt, a target in the “repeal and replace Obama Care”. The trick however is to account for the large number of individuals that gained coverage via expansion (via eligibility increases due to increased poverty limits) – approximately 8 million impacted. This is less about “repeal” and more about “replace” to offset coverage lapse(s) for this group.
- Related Health Policy/ACA Issues: As I mentioned earlier, the ACA/ObamaCare is an enormous law with tentacles now woven throughout the health care industry. The Repeal and Replace issues aren’t as “clean” as one would think. The focus is the insurance mandate, the subsidies, the mandated coverage issues and to a lesser extent, Medicaid. That leaves fully 80% of the ACA intact including a series of policy changes and initiatives that providers wrestle with daily. These issues are unlikely to change in any substantive form. Republicans support alternative delivery projects, value based purchasing, etc. as much if not more than Democrats. Additionally, to repeal is to open a Pandora’s Box of agency regulations that tie to reimbursement, tie to other regulations, etc. For SNFs alone, there exists all sorts of overlap between Value Based Purchasing, Bundled Payments, new Quality Measures and quality reporting (see my post/presentation on this site regarding Post-Acute Regulatory Changes). The list below is not exhaustive but representative.
- Value Based Purchasing
- CMS Center for Innovation/Alternative Delivery Models/Bundled Payments
- Additional Quality Measures and Quality Reporting
- Inter-Program and Payment Reform – Rate Equalization for Post-Acute Providers
- IMPACT Act
- ACO Expansion
As providers watch the inauguration approach and a new Congress settle in, the wonder is around change. Specifically, what will change. My answer – bet on nothing substantive in the short-run. While Mr. Trump ran partially on a platform that included regulatory reduction/simplification, the lack of overall specifics regarding “which or what” regulations on the health care front are targets leaves us guessing. My guess is none, anytime soon.
The Trump focus will be on campaign specific agenda first: ObamaCare, Immigration, Taxation, Foreign Trade, Energy, etc. – not health policy per se. There is some flow-through gains providers can anticipate down-the-road that can be gleaned from the Trump campaign but these are a year or more off. If Trump does deal with some simplification on drug and research regulation (faster, cheaper, quicker approvals), funding for disease management and tele-medicine and a fast-track of some Republican policy “likes” such as Medicare simplification, Medicaid reform at the program level, and corporate tax reduction (will help for-profit providers), then gains will occur or opportunities for gains will occur.
From a strategic and preparatory perspective, stay the course. Providers should be working on improved quality outcomes, reducing avoidable care transitions/readmissions, looking at narrow networks and network contracting/development opportunities and finding ways to reduce cost and improve care outcomes. Regardless of what a Trump Administration does first, the aforementioned work is necessary as payment for value, bundles/episodes of care, and focus on quality measures and outcomes is here to stay and to stay for the foreseeable future.
The long-awaited final rule on the revised/new SNF Conditions of Participation is set for publishing on October 4 in the Federal Register. The public inspection version is available now, including the comments from the Proposed Rule at this link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf The whole document is over 900 pages. The salient portions that include the regulatory changes/summary of provisions is the first 14 or so pages.
Two things to remember for policy readers and folks in the industry. First, what is available is the “law” not the interpretive guidelines that expands on the law in a way that creates enforcement regulations and the roadmap or “how to”. The Final Rule is absent this information. CMS still needs to develop this element. Second, implementation will occur in phases. The first phase is set for November 28, 2016 with minor changes that most providers should be ready for or are parts (related or integrated) from annual rule releases/updates (CMS updates PPS for each provider segment annually) already disclosed. For example, QMs that translate into this rule regarding unnecessary drugs, antipsychotics-psychotics, etc. These are now encapsulated in the rule but frankly, not new in scope. The second phase is November 2017 and the third phase, 2019.
In November of last year, concurrent with the release of the Proposed Final Rule, I wrote a piece and did a webinar for HCPro on this topic. The written piece is here: http://wp.me/ptUlY-iT In my review of the two, what I though would move forward fundamentally “intact” did. What I was concerned about however, didn’t change much based on the over 10,000 comments. There is definitely, a “Camel’s nose under the tent” element with regard to staffing requirements; though not an overt regulation. The devilish elements are around the “facility assessments” for staff adequacy and competency, etc. and the food service requirement to meet individual preferences plus serve nutritionally adequate, palatable meals, etc. As one of the main issues in any environment remains food (always a certain number of complaints), this one could prove very, very prickly when it comes to survey/enforcement. The summary of changes/provisions is below, as published.
- Basis and scope (§483.1)
We have added the statutory authority citations for sections 1128I(b) and (c) and section
1150B of the Social Security Act (the Act) to include the compliance and ethics program,
quality assurance and performance improvement (QAPI), and reporting of suspicion of a
crime requirements to this section.
- Definitions (§483.5)
We have added the definitions for “abuse”, “adverse event”, “exploitation”,
“misappropriation of resident property”, “mistreatment”, “neglect”, “person-centered
care”, “resident representative”, and “sexual abuse” to this section.
- Resident rights (§483.10)
We are retaining all existing residents’ rights and updating the language and organization
of the resident rights provisions to improve logical order and readability, clarify aspects
of the regulation where necessary, and updating provisions to include advances such as
- Freedom from abuse, neglect, and exploitation (§483.12)
We are requiring facilities to investigate and report all allegations of abusive conduct.
We also are specifying that facilities cannot employ individuals who have had a
disciplinary action taken against their professional license by a state licensure body as a
result of a finding of abuse, neglect, mistreatment of residents or misappropriation of
- Admission, transfer, and discharge rights (§483.15)
We are requiring that a transfer or discharge be documented in the medical record and
that specific information be exchanged with the receiving provider or facility when a
resident is transferred.
- Resident assessments (§483.20)
We are clarifying what constitutes appropriate coordination of a resident’s assessment
with the Preadmission Screening and Resident Review (PASARR) program under
Medicaid. We are also adding references to statutory requirements that were
inadvertently omitted from the regulation when we first implemented sections 1819 and
1919 of the Act.
- Comprehensive Person-Centered Care Planning (§483.21) *New Section*
We are requiring facilities to develop and implement a baseline care plan for each
resident, within 48 hours of their admission, which includes the instructions needed to
provide effective and person-centered care that meets professional standards of quality
We are adding a nurse aide and a member of the food and nutrition services staff to the
required members of the interdisciplinary team that develops the comprehensive care
We are requiring that facilities develop and implement a discharge planning process that
focuses on the resident’s discharge goals and prepares residents to be active partners in
post-discharge care, in effective transitions, and in the reduction of factors leading to
preventable re-admissions. We are also implementing the discharge planning
requirements mandated by The Improving Medicare Post-Acute Care Transformation Act
of 2014 (IMPACT Act) by revising, or adding where appropriate, discharge planning
requirements for LTC facilities.
- Quality of care (§483.24)
We are requiring that each resident receive and the facility provide the necessary care and
services to attain or maintain the highest practicable physical, mental, and psychosocial
well-being, consistent with the resident’s comprehensive assessment and plan of care.
- Quality of Life (§483.25)
Based on the comprehensive assessment of a resident, we are requiring facilities to ensure
that residents receive treatment and care in accordance with professional standards of
practice, the comprehensive person-centered care plan, and the residents’ choices.
- Physician services (§483.30)
We are allowing attending physicians to delegate dietary orders to qualified dietitians or
other clinically qualified nutrition professionals and therapy orders to therapists.
- Nursing services (§483.35)
We are adding a competency requirement for determining the sufficiency of nursing staff,
based on a facility assessment, which includes but is not limited to the number of
residents, resident acuity, range of diagnoses, and the content of individual care plans.
- Behavioral health services (§483.40)
We are adding a new section to subpart B that focuses on the requirement to provide the
necessary behavioral health care and services to residents, in accordance with their
comprehensive assessment and plan of care.
We are adding “gerontology” to the list of possible human services fields from which a
bachelor degree could provide the minimum educational requirement for a social worker.
- Pharmacy services (§483.45)
We are requiring that a pharmacist review a resident’s medical chart during each monthly
drug regimen review.
We are revising existing requirements regarding “antipsychotic” drugs to refer to
“psychotropic” drugs and define “psychotropic drug” as any drug that affects brain
activities associated with mental processes and behavior. We are requiring several
provisions intended to reduce or eliminate the need for psychotropic drugs, if not
clinically contraindicated, to safeguard the resident’s health.
- Laboratory, radiology, and other diagnostic services (§483.50) *New Section*
We are clarifying that a physician assistant, nurse practitioner or clinical nurse specialist
may order laboratory, radiology, and other diagnostic services for a resident in
accordance with state law, including scope-of-practice laws.
- Dental services (§483.55)
We are prohibiting SNFs and NFs from charging a Medicare resident for the loss or
damage of dentures determined in accordance with facility policy to be the facility’s
responsibility, and we are adding a requirement that the facility have a policy identifying
those instances when the loss or damage of dentures is the facility’s responsibility. We
are requiring NFs to assist residents who are eligible to apply for reimbursement of dental
services under the Medicaid state plan, where applicable.
We are clarifying that with regard to a referral for lost or damaged dentures “promptly”
means that the referral must be made within 3 business days unless there is
documentation of extenuating circumstances.
- Food and nutrition services (§483.60)
We are requiring facilities to provide each resident with a nourishing, palatable, well balanced
diet that meets his or her daily nutritional and special dietary needs, taking into
consideration the preferences of each resident. We are also requiring facilities to employ
sufficient staff, including the designation of a director of food and nutrition service, with
the appropriate competencies and skills sets to carry out the functions of dietary services
while taking into consideration resident assessments and individual plans of care,
including diagnoses and acuity, as well as the facility’s resident census.
- Specialized rehabilitative services (§483.65)
We have added respiratory services to those services identified as specialized
- Administration (§483.70)
We have largely relocated various portions of this section into other sections of subpart B
as deemed appropriate.
We require facilities to conduct, document, and annually review a facility-wide
assessment to determine what resources are necessary to care for its residents
competently during both day-to-day operations and emergencies. Facilities are required
to address in the facility assessment the facility’s resident population (that is, number of
residents, overall types of care and staff competencies required by the residents, and
cultural aspects), resources (for example, equipment, and overall personnel), and a
facility-based and community-based risk assessment.
Binding Arbitration Agreements: We are requiring that facilities must not enter into an
agreement for binding arbitration with a resident or their representative until after a
dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute
binding arbitration agreements.
- Quality assurance and performance improvement (QAPI) (§483.75)
We are requiring all LTC facilities to develop, implement, and maintain an effective
comprehensive, data-driven QAPI program that focuses on systems of care, outcomes of
care and quality of life.
- Infection control (§483.80)
We are requiring facilities to develop an Infection Prevention and Control Program (IPCP)
that includes an Antibiotic Stewardship Program and designate at least one Infection
- Compliance and ethics program (§483.85) *New Section*
We are requiring the operating organization for each facility to have in effect a compliance
and ethics program that has established written compliance and ethics standards, policies
and procedures that are capable of reducing the prospect of criminal, civil, and
administrative violations in accordance with section 1128I(b) of the Act.
- Physical environment (§483.90)
We are requiring facilities that are constructed, re-constructed, or newly certified after the
effective date of this regulation to accommodate no more than two residents in a bedroom.
We are also requiring facilities that are constructed, or newly certified after the effective
date of this regulation to have a bathroom equipped with at least a commode and sink in
- Training requirements (§483.95) *New Section*
We are adding a new section to subpart B that sets forth all the requirements of an
effective training program that facilities must develop, implement, and maintain for all
new and existing staff, individuals providing services under a contractual arrangement,
and volunteers, consistent with their expected roles.
Stay tuned. I will have more forthcoming as survey guidelines come out, implementation is sorted, etc.
As alternative payment models expand and the options clarify, the post-acute segment of the health care spectrum faces a series of strategic questions, primarily;
- Join a network that exists or is forming be it part of an ACO, a SNP, a preferred provider organization in a Managed Medicaid state, or part of a bundled payment initiative
- Form one de novo – a SNP, a PACE, etc.
- Wait and see what evolves as certainly, much will change over the next two to four years.
One consideration that cannot be overlooked is that CMS plans on aggressively pursuing additional “value-based payments” at the expense of fee-for-service arrangements presently in-place. The process, if consistent with what has occurred in terms of roll-out/roll-forward, suggests a pace that will include new initiatives (e.g., bundled payments) every 12 months. Simultaneous or parallel to this movement, states continue to push forward on various hybrid Medicaid options including managed Medicaid plans, hybrid plans for dual eligible individuals, and the encouragement of more SNP and PACE options with some states offering incentives for formation (PACE Innovation Act allows for different program options with different benefit structures across more population categories. Also provides program opportunities for for-profit organizations).
The question oft asked these days is given the above, where to next for an SNF, a HHA, or even an ALF or Hospice? The answer starts with the market area and the dynamics within the market. The trends I see are truly unique and different region to region, market to market, state to state. For example, in certain states and regions, ACOs exist, are up and running, and have experience under their “belt”. In other states, ACOs are just forming or in some cases, re-forming post a distasteful experience and opportunities are fresh. In still other states, ACOs don’t exist and perhaps trial balloons have floated but nothing has persisted to conclusion.
The market factors that drive (majority of) network formation and thus, the maturity of the formation, the opportunities and the palate for additional or new ventures are;
- How much “managed” Medicare and Medicaid exists in the state, region, etc. and for how long. In markets with a large penetration of Medicare Choice plans, narrow networks and the experience and acceptance between providers is greater.
- Are ACOs up and running and/or forming. The more they are or are developing, the greater the interest in and opportunity for, network enhancement and development
- The market experience with early-phase, bundled payments via BPCI – the precursor to the current bundled payment initiatives. Similarly, whether the region is participating in the CCJR initiative or will in the new cardiac bundled payments.
No matter the dynamics of the market however, certainty does exist that post-acute providers must move to adapt to a value- based payment paradigm. How much risk a provider can and will accept depends on the provider, its existing care management acumen, its infrastructure maturity and its financial/capital position. Similarly, the evolution period that predominates the post-acute world now requires balance. This period is still fee-for-service heavy yet, transitioning (depending on regions, markets) to value-based payments. Providers must manage and excel at both though strategies to succeed in both are not mutually exclusive. Additionally, while payments are evolving, the compliance requirements are not. Oddly enough, the forthcoming revised Federal Conditions of Participation for SNFs will not in any way, provide accommodation for providers that work heavily in a transitional, post-acute world. The regulations are long-term care driven and heavily so in some cases wholly anathema to the transitional care world that is evolving.
Assumptively, this episode of care, value-based payment world is not going away. What this means is that survival in such a world for any post-acute provider is to avoid reactive strategy (defensive), instead applying resources and energy in the direction of the change. What I advise, before I answer the questions posed in the title, is as follows;
- Know your market and critically evaluate the landscape. What is going on in terms of Medicare Advantage plans, ACOs, etc.? If not done, have an in-depth conversation with hospital and physician referral partners regarding their approaches, strategies, etc. to bundled payments. Don’t be surprised however, if a level of vapor-lock exists. Be willing to forebear the task and direct some additional dialogue.
- Assess your organization critically. Where are your quality ratings and measures (stars, etc.)? How does your organization manage its lengths of stay, key quality measures (falls, hospitalizations, wounds, patient satisfaction, etc.)? Where is your HIS/MIS at? Can you communicate with other providers, provide physicians access, etc.?
- Can your organization make investments financially in infrastructure and staff realignment while still caring for a payer mix that is predominantly fee-for-service? Can you survive lower margins perhaps even losses while you transition? You may have extra staff temporarily, different staff, and more capital investment than typical.
- Can you laterally partner or downstream? For example, an SNF needs to find a HHA partner. What synergies in the market exist? Can (or will or already is) the SNF be in the HHA business? How about outpatient? How about physicians? Partner? Employ? Joint venture (careful here)?
Concluding: To the questions(s) posed in the title. Join? Yes, particularly if the provider is single site or limited sites in a region. Again, I am assuming the provider is prepared to join (I’ll summarize at the end). Source complimentary networks and get in and watch for opportunities in the market and within the network to develop additional product/service lines.
Form? Not unless the provider has mass, expertise and enough geographic span and parallel partner alignment to manage a population of at-risk individuals for capitated payments. This is a step that requires significant infrastructure and capital. A provider must have enough outlets and partners to manage population risk across a group exceeding normally, 10,000 lives (ideally larger). The common network models applicable for post-acute providers looking to form their own network are SNPs and PACE programs.
Wait? I can’t recommend waiting as doing so will leave any provider at peril of being left-out as networks continue to evolve. This said, a play cautiously strategy is fine provided that the provider or group is diligent and active in gauging networks and negotiating. A wholesale “wait and see what happens” is an ill-advised strategy.
Final Note: By prepared to join a network I mean minimally, having the following pieces with experience and data as applicable.
- Ratings at 3 Stars or better – ideally 4 or higher particularly in markets where multiple 4 star or better providers exist.
- A great QAPI program that monitors outcomes and tracks and trends quality data and quality measures plus patient satisfaction. Minimally, the provider should have data and analysis on infections, falls, wounds, hospitalizations, response times, other care transitions, length of stay, etc.
- A procedure and personnel to care manage referrals through a full episode of care.
- A process of sharing quality data and communication on patient care and service issues across provider segments.
- HIS/MIS at a level that allows certain functional connectivity between providers such as lab/diagnostics, hospital, physicians, pharmacy, etc. such that patient information can be communicated and acted upon.
- Parallel service partners (either owned or contracted with) across, up and down stream – physicians, hospitals, pharmacy, HHA, hospice, outpatient, etc.
- Care algorithms to support best practices for outcomes on key patient profiles (minimally, bundled payments) plus supportive protocols for key co-morbidities such as COPD, CHF, diabetes, peripheral vascular disease, depression, and other source acquired pressure injuries and infections. The latter are necessary to minimize re-hospitalization risk.
- Care staff trained and using INTERACT tools and versed in physician communication protocols, ideally from a source such as AMDA.
Concurrent with the White House Conference on Aging, CMS released its “proposed” rules of reform for the SNF Conditions of Participation. The proposed rule is set for publication tomorrow in the Federal Register but readers with interest can access the document/PDF on this site on the “Reports and Other Documents” page. The Federal Conditions of Participation for SNFs have not undergone substantial revision or update since 1991 (OBRA implementation and PPS). A portion of the impetus for the update is the continued roll-out of the various pieces of the ACA (Obamacare). Within the ACA are several directions to the Secretary of Health and Human Services to make modernization recommendations and regulatory updates for all provider segments within the Medicare/Medicaid domain.
In researching the content for this post and reviewing the released document (402 pages), it seemed the best use of space and the most expeditious for readers/followers that I summarize the “impactful” elements rather than regurgitate the content of the document. In so doing, I need to preference my summary with a bit of a preamble.
The document is a release of “proposed” rules not concretized rules. There is a lengthy comment period and the final rule will morph from this release. While I won’t profess to have a crystal ball, I have certain insight and 30 plus years of experience so I think my summary will provide a solid look into what the salient changes are and what is likely to happen. The latter is for another post and a planned webinar (watch for details). The key to remember for anyone reading this post and any other information that is current and forthcoming regarding the proposed rule is that this is the “macro” level; the finite level is the implementation and the survey and enforcement data otherwise known as Interpretive Guidelines. What you see now, read now, etc. is and will be a far cry from how the same (when final) is interpreted at the facility level and enforced. I can’t emphasize this point enough as anyone who has a similar history to me knows, the stuff in the Federal Register as the actual law can be widely and sometimes, astoundingly interpreted and enforced at the ground level (again, fodder for another post).
To begin: What is proposed to change is an actual bifurcation of clarifications and new elements. Oddly enough, there isn’t a tremendous amount of overhaul moreover, language changes and “modernizations”. In certain instances, the words are just references to current industry vernacular such as “care transitions” rather than transfer and discharge. Resident Rights are also a section where nothing substantive changes other than references and language. Ironically (and I could run a fun contest here), a number of proposed changes are nothing more than an incorporation of what I have seen evolve as survey tasks and enforcement tasks (current) that aren’t really tied (bright line) to current law. (Feel free to comment to this post if you see some of these ironic elements in the proposed rule). So, without further dribble, here is what my summary of the key proposed changes.
- Transitions of Care: There are two elements of change – one in 483.15 (Transfer, Discharge) and the other in 483.30 (Physician Services). First, any transition from the SNF to any provider will require additional documentation to accompany the resident such as present illness, reason for transfer, medical history, etc. This isn’t major. The major element is for any non-scheduled hospital transfer, the rule would require an in-person evaluation of the resident prior to the transfer by a physician, physician assistant, or advance practice nurse (qualified nurse specialist or NP). This means the 2:00 AM transfer to the hospital for an urgent/emergent condition could not occur without one of the aforementioned individuals being “on-site” and certifying the need for the discharge. I believe this element will either evaporate from the final rule or be substantially changed and better defined. It is not only impractical but frankly, in rural areas, etc., completely improbable and virtually impossible (heavy emphasis on “virtual’ as that is the only way it could occur, via tele-medicine).
- Care Planning: A new section is added titled “Comprehensive Person-Centered Care Planning” that will require an initial care plan in 48 hours, an expanded definition of Interdisciplinary Team to include a CNA, a food service/nutrition staff member and a social worker. The rule also proposes to implement the requirements of the IMPACT Act (Improving Medicare Post-Acute Care Transformation Act) as pertaining to discharge planning (med reconciliation to include pre-admission meds and current meds plus OTCs, discharge summary recommendations for follow-up care, resources and information for the resident regarding his/her discharge plan, etc. I believe this element will remain in the final rule, substantially unchanged.
- Nursing Services: The proposed rule would incorporate a competency requirement for determining sufficient number of staff based on a facility assessment which incorporates number of residents, acuity, diagnoses and careplans. This one I see changing quite a bit as it is so vague and potentially fraught with huge implementation and oversight problems. It also as written, is a bit confusing and disconcerting in terms of a survey element.
- Behavioral Health: This is proposed as a new section. It, similar to Nursing Services prior, would require a facility assessment to determine direct care staff needs regarding staff competency and skill sets to meet resident psychological and mental health needs. Again, I see this changing dramatically as it is horribly vague and fraught with implementation challenges.
- Pharmacy Services: The proposed rule includes a required 6 month pharmacist review of resident medication regimes and upon admission when the resident is new and post-hospitalization (return). and monthly when the resident is on an antibiotic, psychotropic drug or any other drug that a QAA (Quality Assurance) committee requests the pharmacist review. Irregularities are to be noted and reported to the attending physician, the medical director and the director of nursing. Attending physicians are then to document that the irregularity was reviewed and any action taken/not taken plus the reasoning for the action. I see this fundamentally staying with some clarifications.
- Dental Services: The “big” shift is the proposed requirement that facilities are prohibited from charging a Medicare resident for loss or damage of dentures, if the facility is responsible for the dentures. I’m not sure where this will fall out but if it remains fundamentally intact, facilities will be paying for lots of dentures, regardless of how the loss or damage occurred.
- Food Service: Following thematically with other elements in the proposal, the requirement is for a facility to assess the resident population by care needs, diagnoses, acuity and census and employ sufficient staff with sufficient competency to provide food and nutritional services. A Director of Food Service in the proposal must meet certain education and training requirements such as Certified Dietary Manager, Certified Food Service Manager, have at least an Associate’s degree in food service management or similar from an accredited institution. The proposal also requires facility menus to be reflect the cultural, religious and ethnic needs and preferences of residents, be periodically updated and not limit the resident’s right to make food choices. In addition, facilities will have to allow residents to consume and store foods brought by visitors and families. I see major changes forthcoming in this requirement, especially around the staff adequacy determination, menus and food brought into the facility by visitors and families. The latter is a huge infection control risk.
- QAPI: This requirement is added anew – not surprising.
- Facility Assessment: This also is a new element requiring the facility to conduct and document a facility-wide assessment to insure the resources necessary to care for residents are available daily and in emergencies. This assessment must be updated regularly. The assessment must address the resident population by number, overall care delivered and the staff competency to provide the care and meet resident preferences plus incorporate a facility-based and community-based risk assessment. I see this element changing dramatically as it is vague and potentially problematic to enforce and implement.
- Binding Arbitration Agreements: The rule will require facilities that use such agreements to meet certain requirements. Chief among the provisions is that a resident and/or his/her legal representative cannot be required to sign the agreement upon admission. Additionally, the agreement must indicate the resident’s right to communicate with federal, state and local officials (regulatory) including Ombudsmen. I do not see much change in this element.
- Infection Control: In addition to having an Infection Control Program the facility would be required to have an Infection Control Officer and this individual’s primary responsibility must be infection control. I see the Infection Control Officer element subject to change.
- Compliance and Ethics Program: This is a new element requiring the operating organization (not just the facility if part of a larger organization) to have at each facility a compliance and ethics program with written standards, policies and procedures such that the same are capable of reducing criminal, civil ad administrative violations. I see this element staying but changing to be a bit more definitive and relevant.
- Staff Training Requirements: This is also a new element requiring facilities to develop, implement and maintain for all staff, a training program that encompasses (minimally) the following (I don’t see much change in this requirement);
- Resident Rights and Facility Responsibilities
- Abuse, Neglect and Exploitation
- Compliance and Ethics
- Ongoing education for CNAs in dementia education and abuse prevention (12 annual hours minimum)
- Behavior Health Training
The estimate provided by CMS for implementation cost at the facility level is $46,491 in the first year, $40,685 in the following year totaling $729 million industry-wide in the first year. I guarantee that these numbers are light by 50% or more and in stable to declining reimbursement periods (now and going forward), this will be the driving point the industry will use in lobbying Congress, among the other points noted herein.
As is customary in late fall, the Office of the Inspector General (OIG) of the Department of Health and Human Services released its Fiscal Year work plan. As a reminder or preface, the work plan is the summary of investigations and focal areas the OIG plans to undertake in the upcoming fiscal year and beyond to ensure program efficiency and integrity and to identify and prevent fraud, waste and abuse (the latter is the most relevant activity). Each provider segment reimbursed by Medicare is covered, some more so than others depending on the prevailing nature of program expenditures. As of late (most recent years), the post-acute sector is targeted principally due to the outlay/expenditure growth (Medicare) for hospice, home health and skilled nursing care.
Below is the categorical highlights (not exhaustive) found within the 2015 Work Plan (the full plan can be found here ( https://oig.hhs.gov/reports-and-publications/archives/workplan/2015/FY15-Work-Plan.pdf ;
Skilled Nursing Facilities
- Medicare Part A Billing: Scrutiny on claim accuracy and appropriateness of billed charges, particularly focused on therapy utilization and RUGupcoding. Recent False Claims Act cases withExtendicare illustrate how the OIG views Medicare payments for inappropriate utilization and for care that is clearly inadequate. This is a major risk area for providers and no SNF should discount the exposure, particularly if any of the following elements within the organization’s operations are present.
- Therapy services provided by an outside contractor. The OIG has identified previously that there exists a correlation between certain therapy agency contractors and patters of upcoding.
- Disproportionately higher (as a percentage of census/payer mix), Medicare utilization. The common threshold level is 30% or lower of total census. Higher Medicare days as a percent of overall payer mix is a red flag for the OIG or an outlier.
- Low overall Part B therapy utilization.
- Skewed RUG distribution where the majority of days are falling the highest paying therapy RUGs (particularly ultra-high with moderate to minimal ADL scores – minimum/moderate assist levels)
- Longer length of stays at higher RUG levels – minimal or infrequent Change of Therapy without corresponding Change of Conditions or vice-versa.
- Medicare Part B Billing: The converse to the point previous is enhanced focus by the OIG on over-utilization or inappropriate utilization of Part B therapy services when Part A is exhausted or unavailable. The OIG has noticed a trend for providers wary of Part A scrutiny to shift utilization to Part B. Again, the focus is on inappropriate billing patterns and utilization trends above or beyond, the historical norm.
- State Agency Survey Reviews: The OIG plans to review how frequently and how well, state survey agencies reviewed and verified, facility plans of correction for completeness and compliance. The gist: enhanced/additional federal look behind visits and desk reviews.
- Hospitalizations: The OIG intends to review the hospitalization trends of SNF patients, identifying patterns of utilization for manageable or preventable care issues. A 2011 review found that 25% of Medicare SNF patients were hospitalized in a given year and the OIG is of the opinion that a percentage (likely sizable) is preventable and potentially, indicative of quality problems at the SNF level.
- Hospice in Assisted Living: The OIG will monitor the continued growth trend of hospice care provided in Assisted Living facilities. Part of this initiative is couched in the requirement within the ACA for the Secretary (of HHS) to reform the hospice payment system. The OIG indicates that it will gather data on hospice utilization, diagnoses, lengths of stay, etc. for residents in Assisted Living facilities. Medpac has noted that for many providers, particularly the larger national chain organizations, that hospice care in this setting is typified by longer stays and thus, monitoring is warranted.
- General Inpatient Care: OIG will continue to monitor the utilization of General Inpatient Care within the hospice benefit for appropriateness and potential abuse. As General Inpatient Care pays a higher per diem and many hospices maintain their own inpatient units, the concern on the part of OIG is misuse or abuse for payment or, to mitigate (agency) staffing shortages where the better alternative for the patient is Continuous Care.
- Reimbursements/Payments: The OIG will continue to monitor payments made to agencies principally for accuracy. Prior investigations by the OIG identified that at least on in four claims were incorrect and potentially, fraudulent. This initiative is a continuation of ongoing concerns by the OIG of excessive fraud and or waste in the Home Health sector principally due to improper application of the Medicare benefit and lack of substantiated medical necessity and/or supported clinical documentation of appropriateness of care (e.g., therapies particularly).
LTAcHs and Inpatient Rehab Facilities
- Adverse Events: The OIG is targeting both settings for an analysis of adverse events/temporary harm circumstances to patients in the setting (falls, infections, etc.). Inpatient Rehab Facilities provide 11% of post-acute inpatient therapy services and growth over the past decade or so has been consistent and steady. Questions however have arisen regarding the actual value of such care compared to the care received in an SNF. The SNF is reimbursed substantially lower than the IRF even though many SNFs staff sufficiently to provide the same level of therapy services (up to 3 hours per day). Similar concerns have risen within the LTAcH setting as to cost vs. outcome and quality, particularly as compared other setting comparable, lower cost settings such as SNF. There continues in Washington, a generalized view that post-acute payment reform is overdue, particularly given the rapid expansion of the sector. Within the payment reform movement is the growing view that setting differentiation and thus payment differentiation at the inpatient level is no longer warranted and consolidation is required to rid the excess capacity and reward economically efficient providers that demonstrate higher quality outcomes (SNFs in particular as well as rural swing bed hospitals and to a lesser extent, home health providers and outpatient providers).
Yesterday, CMS confirmed the details of an earlier published proposed rule (May) set for publication on August 22, 2014 (final rule) regarding FY 2015 hospice payments. Anyone wishing a copy of the Federal Register text, please contact me as provided on this site (either via comment or contact info. in Author page). As is always the case with these final rules, CMS addresses multiple components of the programmatic rules, not just payment. In other words, the “benefit” (coverage, eligibility, payments, etc.) are often adjusted or modified to codify other legislation (the ACA for example) or recommendations for congressional hearings and Medpac. Such again is the case for Hospices.
A summary of the key provisions in the final rule are as follows.
- Payment: Hospices will receive on average, an increase of 1.4% in reimbursement. This is a function of a 2.1% increase in the market basket (inflation) minus a .7% in overall payments resulting from the 6th year of the 7 year phase-out of the BNAF (Budget Neutrality Adjustment Factor). The 1.4% is applied to daily home care rate and the resulting rates for GIP and Continuous Home Care are $708 and $930 per day respectively.
- Quality Reporting: Introduced in 2014, hospices are required to report certain quality measure data to CMS. Failure to report the data equals a 2% reduction in payments. For 2015, no new quality measures are forthcoming although CMS is requiring that all hospices participate in the CAHPS (Hospice Survey)/Hospice Quality Reporting Program for one month in the first quarter of 2015 and then monthly for April through December for payment implication in 2017 and then collect survey data Payment implications in 2018 require data collection for every calendar month in 2016.
- Attending Physicians: Hospices will be required to identify the patient’s attending physician on the Election Form – at the time the patient elects the Hospice Benefit.
- Notice of Eligibility/Notice of Termination: CMS defines prompt filing as 3 days after election or 3 days post revocation/termination.
- CAP Determinations: CMS is requiring all hospices to finalize their aggregate cap calculations within 5 months after the CAP year-end (March 31) and re-pay any overages accordingly. They are not issuing any requirement for such calculations on the inpatient cap.
- Guidance on Hospice Eligibility: CMS issues further guidance on how a hospice should determine eligibility for hospice; essentially the determination of terminality. The benefit requires the patient to be terminally ill and death to most probably occur within 6 months or less. The guidance is that the Hospice Medical Director should consider the terminal diagnosis, the health conditions of the patient related or unrelated to the terminal condition and all other current clinical data relevant to the diagnoses. The point in this provision is CMS stating that physician’s must use clinical relevancy as the means for determining appropriate/inappropriate by “terminal” likelihood.
Finally, the ACA requires the Secretary of DHHS to make recommendations regarding benefit reform and begin the same thereto, no earlier than October 31, 2013. Nothing in the rule gives any indication of wholesale movement toward payment reform. The glimpses remain the same in the discussion sections of trends in utilization patterns; primarily declining Continuous Care stays and increasing live discharges. As before, the outlook appears to be for a payment system that is bell-shaped – higher in the first days of the stay, moderating at stability, and again higher at the end or near death. CMS shows nothing about how this might work other than to continue to make vague references to a system similar.
About a month ago (mid-March), CMS introduced a pilot program called the Medicare Care Choices Model. Basically, this pilot program will allow Medicare beneficiaries to access, via certain participating hospice organizations, dual benefits; hospice and curative treatments, concurrently. Under the current Medicare Hospice Benefit, a patient with a terminal illness or condition, certified likely to die in 6 months or less by a physician, can enroll into the Hospice Benefit but in doing so, forgoes the traditional coverage for curative treatments under traditional Part A. Essentially, by electing the Medicare Hospice Benefit, the patient has decided not to pursue an aggressive path of cure or curative interventions or treatment (chemotherapy, radiation therapy, artificial hydration/nutrition, etc.) opting instead for palliative care, symptom management, and a progressive path toward natural death.
In the Medicare Care Choices Model, Hospices that apply and are selected to participate in the program will provide services available under the Medicare hospice benefit for routine home care and inpatient respite levels of care that are not separately billable under Medicare Parts A, B, and D. The services must be available 24 hours per day and across all calendar days per year. CMS will pay a $400 per beneficiary per month fee to the participating hospices for these services. Providers and suppliers furnishing curative services to beneficiaries participating in Medicare Care Choices Model will continue to bill Medicare for the reasonable and necessary services they furnish. Per CMS, the ideal hospice applicants for program participation can demonstrate a history of providing care/case coordination to patients, across a continuum of providers and suppliers.
Returning to the title of this post: Is this progressive on the part of CMS? The truth is best answered – “not really”. There are a number of current issues with regard to the Medicare Hospice benefit, care utilization, end-of-life care in general, and yes, the ACA at play. Under the ACA/Obamacare, the Secretary of HHS has a mandate to implement changes to the Medicare Hospice benefit no earlier than October 1, 2013. Abt and Associates (consultants) has been gathering and analyzing data on lengths of stay, place of care, length of stays in hospice by diagnosis, costs of care, etc. The Medicare Care Choices Model is in certain respects, a trial balloon element in the process of overhaul for the Medicare Hospice benefit.
Another operative element or issue and one that hospices are all too familiar with of late is the utilization pattern changes that are occurring across the spectrum of end-of-life care. Hospice referral patterns haven’t changed much but the nature of the referral has. Additionally, census trends for most hospices are flat and when viewed with/against lengths of stay, the trends are actually “down”. In short, an evolving dichotomy for hospice referrals is occurring. The referrals are modestly increasing in many urban/suburban regions but at the expense of the length of stay. The patient is finally referred at the end of his/her life, after all curative options are exhausted. Per CMS, 44 percent of Medicare patients use the hospice benefit at end-of-life but in a continuing pattern, at the end of life resulting in shorter and shorter stay increments.
Back to the question in the title of the post, this initiative is less about promoting or integrating hospice earlier, though the outcome of earlier intervention could occur. What CMS is tinkering with or intending to impact, is the continued growth of very expensive medical care in the last months of life. The two greatest drivers for Medicare spending in the U.S. are the cost of caring for “lifestyle” diseases (chronic diseases such as Type II diabetes) and care provided within the last six months of a person’s life. The latter is the target for this program. The premise is as such. If, by integrating hospice into the equation sooner, having removed the curative or interventional obstacle, patients will transition earlier to palliative care, foregoing certain last rounds of inpatient, interventionist care and thereby, save the government money. The patient and the curative care team (the physician, hospitals, etc.) will be less loathe to refer to hospice and address the prospect of treatment futility (even though that prospect is real) since, under this program, the patient may continue to pursue as much interventional and curative approaches as desired.
My quick analysis is that this program, while a novel approach, doesn’t really achieve any of the objectives intended (savings, better care, easier transitions, earlier transitions, more appropriate care, etc.). My reasons and conclusions are as follows;
- The issue of when a patient chooses to opt for end-of-life care versus curative care is more an American cultural/social issue than a public policy issue. As Americans, we are inculcated that death is bad, life is premiere. Our health insurance, especially now with ACA reforms, has virtually no limits on the treatment we can access (no lifetime minimums and no pre-existing condition limitations). Our media (television, print, other) is full of advertisements of procedures, drugs, providers that offer hope and cure. Watch a Cancer Treatment Center of America spot – a prime example. Physician specialists aren’t trained to forego what may clearly be futile care but instead, to press forward and to convey options and hope. In fact, the number of physician specialty groups that I have spoken with over the years validates this point emphatically: “Hospice is futility. We provide hope”. This element is the leading cause of late stage referrals when in validation, futility is truly evident as the patient is nearly dead or the final rounds of whatever treatment have shown no result.
- There is no financial incentive to change or alter the care provided. In the Choices model, the patient may access curative care and receive hospice services. The hospice receives $400 more per month (for care coordination) and all other provides bill Medicare for their interventions, services, etc. If CMS is relying on the care coordination skills of the hospice to facilitate better choices by the patient, his/’her family and/or the other providers, they are truly foolish. These groups have no financial incentive to partner on best choices and unless, CMS provides regulatory boundaries or payment incentives aligned to certain behavior, the savings will be minimal.
- There isn’t a real incentive for patients to enroll in this pilot project, other than they can get routine home care, respite, etc. benefits from the hospice. In reality, patients who are going to pursue curative options aren’t thinking hospice options. Likewise, the providers offering the curative interventions aren’t talking hospice options at this point. Our current healthcare system doesn’t function on this integrate plane. Thus, there truly is no motivation across the actors (hospice, curative providers, patients, families) to change current behavior. In fact, I see a risk for new avenues of improper utilization, qualification and abuse. Enrollment in hospice under this program is going to be challenging to qualify and quantify as in theory, where is the point of terminality (without intervention, death is likely in 6 months).
It will be interesting to watch how this program rolls-out and how CMS addresses or attempt to address the nuanced and overt regulatory issues that today, are separate and distinct by benefit programs. Likewise, it will be interesting to see how patient utilize, if they do to any extent, this hybrid model. The economist in me tells me that the concept and programmatic approach makes financial sense but operatively, this isn’t a slam-dunk in terms of ever working in the real world. There are simply too many behavioral impediments today for this to be a truly successful model.
Yesterday, the Speaker of the House (John Boehner) announced that a compromise is forthcoming to alleviate, for one year, the pending 24% payment reduction to the Physician Fee Schedule arising out of the current SGR formula. Ten days or so ago I wrote a post regarding a House bill that repealed the SGR but contained a “poison-pill” provision assuring its death in the Senate ( http://wp.me/ptUlY-gm ). As is the common methodology in Congress today, this initiative is a “patch”; another extension of the current status quo, delaying any SGR implications for one year. Alas, while the SGR demands fixing, permanently, no traction is available among the parties to resolve the issue.
What the compromise does and doesn’t do is as much the center of debate as any efforts to replace the SGR with a more permanent formula. In summary, the compromise;
- Staves off the 24% cut but doesn’t restore any cuts related to sequestration.
- It delays the implementation for hospitals of the 2 midnight rule for another six months. The 2 midnight rule essentially reduces Medicare payments to hospitals for short in-patient stays. It requires admitting physicians to have justification for the inpatient stay and if the same is lacking, the stay could be deemed (by RAC auditors) outpatient observation and thus, paid under Part B at a lower rate. The Bill would delay RAC auditors ability to review such stays until March of 2015 and give CMS authority in the interim and beyond, the ability to probe and educate but not re-classify stays.
- It extends the implementation of ICD-10 for one more year.
- It extends certain programs that provide additional funding for rural hospitals.
While no one wins under these compromises, the Patch is likely to pass both houses quickly, viewed as a better alternative than the SGR cuts. For post-acute providers, this is good enough news as the therapy fee schedule was subject to the same 24% reduction.
Interesting to note is that while the Bill extends the implementation of the 2 midnight rule, it doesn’t address the backlog of Administrative Appeals that continues to mount due to the Medicare RAC initiative. This backlog is enormous and growing and it is the sole source initially, for providers to appeal RAC decisions. I know of multiple providers today in the appeal queue waiting for a review of what appears to be, many erroneous determinations and shabby reviews of claims. More on this in another post – later.
Earlier today, the House passed a bill that repeals the SGR formula used to derive physician reimbursement under Medicare. For more specifics on the SGR, see a previous post I wrote at http://wp.me/ptUlY-ae . The legislation is title SGR Repeal and Medicare Payment Modernization Act.
Unfortunately, the fate of the legislation is predestined as the bill includes an amendment from the Ways and Means Chairman (Rep. Dave Camp) that delays implementation of the tax/fee penalties concurrent with the Individual Mandate. It does not repeal or delay the mandate, simply the punitive measures for those that don’t comply. Recall, the Affordable Care Acts requires all individuals above a certain income limit (tax filing limit) or without expressed hardship, to obtain health insurance by April of this year or face a penalty. The penalty embedded within the act is a flat dollar floor with amounts increasing based on gross income. With certainty, the inclusion of the amendment in the legislation spells a death sentence in the Senate where Senate Democrats hold a majority and Leader Reid, controls the flow of legislation for vote. The bill will never see a vote in the Senate due to the Camp amendment.
The sticking point on repeal of the SGR is cost. The Congressional Budget Office estimates that a repeal of the SGR, shifting to an indexed option with market baskets and productivity adjustments, will cost $138 billion over 10 years. The dollars would need to come from an already shaky Medicare program that today, doesn’t really have another source of revenue save tax increases or contra-revenue infusions via reduced provider payments elsewhere in the industry. The funding dilemma that occurs with the Camp amendment is that such an amendment actually saves the government $169 billion. The savings is achieved by a projection of fewer people, sans the mandate penalty, having health insurance including under Medicaid and SCHIP (or CHIP). With fewer people accessing the government-funded entitlement programs, the outflow is less, savings in amounts greater than the SGR repeal costs.
Once again, a fascinating insight into current federal health policy and the economics at play…