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  • CMS Education Efforts on Jimmo Ruled Inadequate

    Though the Jimmo v Sibelius settlement reached in 2013 was supposed to have done away with the fallacy of the "improvement standard" as a basis for Medicare claims denials, many of the entities that make decisions about claims haven't been sufficiently educated on this reality, according to a US District Court judge. In the ruling, Judge Christina Reiss describes how the Centers for Medicare and Medicaid Services (CMS) did not live up to its responsibilities to educate stakeholders, and instead supplied "non-responsive answers" to questions, and "arguably incorrect" information on claims denials for skilled maintenance therapy.

    The August 17 opinion and order is a victory for the Center for Medicare Advocacy (CMA) and Vermont Legal Aid, which together represented 7 individual plaintiffs and 7 organizations in a complaint filed in March of this year. The complaint alleged that CMS did not comply with the requirement that it adequately educate stakeholders on why claims could not be denied simply because a patient has not demonstrated improvement. APTA submitted a declaration of support for this action, writing that the CMS education efforts were "introductory in nature" and "have not been sufficient" to educate members.

    The plaintiffs argued that the CMS education efforts amounted to a single briefing for providers and adjudicators in early December 2013, with nearly nothing done since. The court's decision in favor of the plaintiffs focused specifically on a CMS summary of questions and answers from that single briefing, a summary that Reiss writes "reflects virtually no effort to educate participants regarding the impact of the Jimmo settlement and the implementation of the coverage standard."

    Reiss further writes that "plaintiffs have provided persuasive information that at least some of the information provided by the Secretary in the Education Campaign was inaccurate, nonresponsive, and failed to reflect the maintenance coverage standard." The ruling cites several instances in which CMS was evasive in its answers to questions from contractors about how to handle claims, and asserts that in at least 1 instance, CMS may have provided "arguably incorrect" information on the appropriate language to use when denying claims.

    "At a minimum, plaintiffs bargained for the accurate provision of information regarding the maintenance coverage standard and their rights under the Settlement Agreement would be meaningless without it," Reiss writes. "The Secretary makes no claim to the contrary. At least insofar as the Summary is concerned, the Secretary breached the Settlement Agreement by failing to convey accurate information regarding the maintenance coverage standard."

    Under the order, CMS must develop "corrective action" for the education shortcomings. If CMS and plaintiffs can't agree on the plan, the issue could be presented to the judge again.

    APTA maintains a webpage on skilled maintenance that includes links to a podcast series, a recorded webinar, and several pages of frequently asked questions.

    APTA's Participation on Utilization Management Vendor Group Opens Channels for Increased Communication

    APTA's participation on an advisory committee to 1 of the country's largest utilization management (UM) companies is shedding more light on what is likely to be a growing trend in payment that will have direct impact on physical therapists (PTs). It's the first time the association has been included in a UM advisory panel on an ongoing basis.

    In July, American Specialty Health (ASH) hosted an on-site meeting of its Professional Affairs Healthcare Advisory Committee (PAHAC), a group designed not only to facilitate communication between the UM company and practitioners, but to provide input to ASH on ways to improve UM for patients and providers. APTA attendees to the meeting included Richard Katz, PT, DPT, California Physical Therapy Association (CPTA) payment chair and member of the APTA Private Practice Session (PPS) reimbursement committee; Dennis Langton, PT, member of the CPTA reimbursement committee; Jenelle Lauchman, PT, DPT, president of the Nevada Physical Therapy Association; and Elise Latawiec, PT, MPH, APTA practice management senior specialist.

    In addition to bringing a physical therapy perspective to the table, the APTA representatives also took away some tips from ASH that could help clarify some of the company's processes. Among them:

    • ASH continues to receive fax submissions from providers with required information missing, resulting in delays and calls to providers for clarifications.
    • Providers should avoid sending extra documentation beyond what's required—because ASH is legally obligated to review everything, this too can slow down the approval process.
    • The company's online submission and service portal, ASHlink, handles about 83% of all transactions. This is the preferred method of submission.
    • Providers can increase payment by up to 3% by using ASHlink.

    ASH also outlined its recent mid-year additional physical therapy clinic re-tiering effort, which resulted in 155 providers being moved up a tier effective July 1. Going forward, the re-tiering process will be conducted annually on either January 1 or July 1, depending on when a provider joined the network.

    ASH is one of the largest UM companies in the US, with a portfolio of 38 million managed lives. Currently, ASH has a contract with Cigna to manage its enrollees in California, Arizona, Nevada, and Utah. Cigna will gradually extend its use of ASH into 26 additional states beginning in January 2017 through 2018. APTA will share more information as it becomes available.

    APTA advocates on behalf of the physical therapy profession around the increased use of third-party UM companies. Part of this effort involves gathering information on PTs' direct interactions with UM and utilization review (UR) vendors. The association urges members who have experienced problems with a UM/UR vendor to complete an online form to document these experiences. APTA staff members personally respond to each completed form received.

    SNF, IRF Final Rules Increase Payment—And Reporting Requirements

    In final rules for 2017, the Centers for Medicare and Medicaid Services (CMS) has followed through on its proposed push for more quality reporting and new payment models for skilled nursing facilities (SNFs) and inpatient rehabilitation facilities (IRFs). Those rules, issued last week, also include a 2.4% increase in payments to SNFs, and a 1.9% increase for IRFs.

    APTA has created summaries of the rules, available online (for the SNF final rule visit APTA's Medicare Payment and Policies for Skilled Nursing Facilities page and look under the "APTA Summaries" header; for the IRF final rule, visit the APTA Medicare Payment and Policies for Hospital Settings page, and scroll down to the "APTA Summaries" section under "Inpatient Rehabilitation"). Here are some of the highlights.

    CMS establishes an overall payment increase of 2.4%, or an estimated $920 million, but the rule also includes notice that CMS is continuing its push for quality-reporting measures required by the Improving Post-Acute Care Transformation (IMPACT) Act. The 2017 rule adds to the list of quality measures that will be required of SNFs beginning in 2018 to include data on discharge to community, Medicare spending per beneficiary, and potentially preventable 30-day readmissions. The proposal also stipulates that by 2020, SNFs will be required to supply reports on drug regimen reviews with follow-up.

    The rule also continues the rollout of value-based purchasing requirements that will go into effect in 2019. The 30-Day Potentially Preventable Readmission Measure will be the all-cause, all-condition risk-adjusted potentially preventable hospital readmission measure under the value-based purchasing program. CMS will use 2015 as the baseline period and 2017 as the performance period for the 2019 program.

    Next year's payment increase for IRFs will rise slightly from this year's overall 1.6% increase, to 1.9% overall (estimated $145 million).

    Like the SNF rule, the IRF rule also establishes more quality-reporting requirements around many of the same areas that will be required of SNFs (discharge, spending, readmissions, drug regimen review, etc). Additionally, the IRF rule adds 4 new measures to the facilities' public reporting requirements, including reports to a publicly accessible CMS website, such as Hospital Compare.

    Additional reports available to the public
    The new rule also adds to the list of data that CMS will share with the public. New quality measures that will be shared beginning this fall include facility-wide inpatient hospital-onset methicillin-resistant staphylococcus aureas (MRSA) rates, urinary tract infection rates, all-cause unplanned readmissions within 30 days of discharge, and rates of new or worsened pressure ulcers among residents and patients.

    Now Available to Members: Highlights of the Proposed 2017 Medicare Physician Fee Schedule

    Get up to speed on 1 of the most extensive changes to physical therapy coding in years: APTA members can now access highlights of the 2017 proposed Medicare physician fee schedule rule, a guide that includes an explanation of the Centers for Medicare and Medicaid Services' proposal to implement a 3-level physical therapy initial evaluation code system.

    In addition to information on the new system for current procedural terminology (CPT) coding, the highlights prepared by APTA federal regulatory affairs staff touch on all of the other elements of the proposed rule that affect physical therapists, including payment rate updates, CMS' continued review of potentially misvalued codes, and proposed adjustments to physician self-referral rules and accountable care organization (ACO) quality measures.

    To access the highlights, visit the APTA Medicare fee schedule webpage, scroll down to APTA summaries, and click on the related highlights link. For a live conversation on the proposed rule, be sure to sign up for the next APTA Insider Intel live phone-in event, scheduled for August 17 2:00 pm-2:30 pm, ET.

    A final rule will be issued later in the year. APTA intends to comment on the proposed rule by the September 6 deadline.

    Bill That Adds Protections for PTs Traveling With Sports Teams Moves in House

    A bipartisan bill that helps to protect physical therapists (PTs) and other health care providers who travel across state lines with sports teams is on its way to the floor of the US House of Representatives.

    The Sports Medicine Licensure Clarity Act (HR 921/S 689) aims to provide added legal protections for sports medicine professionals when they're traveling with professional, college, or national sports teams by extending the provider's "home state" malpractice and professional liability insurance to any other state the team may visit. This week, the House Energy and Commerce Committee approved the bill for full House consideration.

    Originally, the bill's coverage was restricted to only physicians and athletic trainers. Advocacy staff at APTA worked closely with the office of sponsor Rep Brett Guthrie (R-KY) and ECC subcommittee staff to get PTs added to the list. The bill also opens the possibility of coverage for physical therapist assistants who are under the direct supervision of a PT.

    In addition to Guthrie, cosponsors include Rep Cedric Richmond (D-LA) in the House, and Sens John Thune (R-SD) and Amy Klobuchar (D-MN) in the Senate.

    Senate Committee Hearing on Stark Law Touches on Self-Referral Loophole for Physical Therapy, Other Services

    Though there are plenty of political distractions out there, some members of the Senate have not forgotten about problems with the so-called "Stark law" intended to counter abuses of physician self-referral. At a hearing of the Senate Finance Committee this week, legislators talked about how certain provisions of the law, including exceptions that allow for self-referral to physical therapy, may not be in the best interests of Medicare's shift to value-based models.

    The hearing (viewable here) was called by chair Orrin Hatch (R-Utah) to look at the entire breadth of the Stark law, which he characterized as "the embodiment of good intentions muddled with complex execution." That law prohibits physicians from referring Medicare patients for services or facilities in which the physician has a financial interest, but it contains a loophole for referrals for "in-office ancillary services" (IOAS)—physical therapy, anatomic pathology, radiation oncology, and advanced diagnostic imaging. APTA has long advocated for the elimination of this loophole.

    The bulk of the hearing focused on the big-picture issues associated with the law, particularly around the ways it might be unintentionally impeding the development of value-based health care models that call for greater integration of services. Though not a major focus of the hearing, the IOAS exception was mentioned in testimony, and characterized by all 3 witnesses as 1 of the more "contentious" issues in the law.

    "Many stakeholders have singled out the IOAS exception as 1 of the most abused in the law, because it ultimately promotes the very conduct that the Stark law was intended to prevent—overutilization of services and unnecessary self-referrals of health care services," said Troy Barsky, an attorney representing the American Society for Radiation Oncology, in written remarks.

    While Barsky had recommendations for possible limits on the exceptions, he acknowledged that Congress would need to provide the Centers for Medicare and Medicaid Services with additional authority before any major reforms could be accomplished. Still, he argued, adjustments could be made that "would stop the increasing rate of unnecessary utilization due to IOAS and promote value-focused arrangements among providers."

    Elimination of the IOAS exceptions remains a central public policy priority of APTA, which is a member of the Alliance for Integrity in Medicare, a coalition of organizations that has been advocating for closing the loophole. APTA submitted comments to the Senate Finance and House Ways and Means committees in early 2016, and provided a separate set of comments specific to this week's hearing, writing that "care furnished under the IOAS exception is often degraded, raising serious quality concerns."

    The IOAS exemptions are also the subject of possible discussion in the House of Representatives, where Rep Jackie Speier (D-CA14) reintroduced the "Promoting Integrity in Medicare Act," a bill that would end the IOAS loopholes.

    According to various news reports, Hatch has stated that he hopes to see legislative action on the Stark Law by the end of this year. It's unclear if that action would include changes to the IOAS exceptions.

    Highlights of New Home Health Agency Claims Program Posted

    Now available to members through the APTA website: highlights and resources to help members prepare for big changes to home health agency (HHA) Medicare claims coming to 5 states.

    Beginning with Illinois on August 1, 2016, the Centers for Medicare and Medicaid Services (CMS) will require HHAs to submit supporting documentation for services while beneficiaries still are receiving care. CMS will review the pre-claim and make a review decision. The other 4 states—Florida, Texas, Michigan, and Massachusetts—will be phased into the program during the rest of the year and into 2017. The final version of the program was announced in June.

    The new APTA highlights (look under "APTA Summaries") provide the basics on how the system will work, including information on making submissions, the process for resubmission of a claim that is not affirmed by CMS, and penalties for claims submitted without pre-claim review. Links to CMS resources are also included.

    APTA is monitoring the implementation of this program and needs your input. If you have any administrative issues, unreasonable delays in responses, or unfair denials under this demonstration, please submit your issue to advocacy@apta.org. Be sure to include “Home Health Demonstration” in the subject line of your email.

    New Rules for ACOs Aim to Encourage Participation

    Accountable care organizations (ACOs) participating the Medicare Shared Savings Program (MSSP) will begin operating under some new rules designed to incentivize participation in the program while continuing the Centers for Medicare and Medicaid's (CMS) evolution toward value-based payment.

    Under the new rule, ACOs that sign up for a second or subsequent contract period will be subject to a benchmarking process based on regional rather than national spending data—a move aimed at acknowledging the fact that health care costs aren't the same across the country. Also, so-called Track 1 ACOs (which share in savings but are not responsible for losses) that are approved for renewal will be allowed more time to transition to a risk-based Track 2 or 3 model by way of a 1-year deferment.

    The rule also sets up a 4-year window for appeals and reopenings of reviews of savings or losses—the first time CMS has offered specifics on the process.

    APTA has developed summary of the rule and offers a webpage dedicated to ACOs. Also, the APTA Learning Center includes a recorded webinar on ACOs and the role of physical therapists.

    "Today's changes will encourage more physicians to improve patient care by joining [ACOs], while also refining how the program measures success, so that current participants are better rewarded for quality," said CMS Acting Administrator Andy Slavitt in a news release.

    The rule will be implemented in phases beginning January 1, 2017.

    CMS Will Shift Home Health Agencies to a 'Pre-Claim Review' Model in 5 States

    In a step that it hopes will help educate home health agencies (HHAs) and prevent improper payment, the Centers for Medicare and Medicaid Services (CMS) will soon require HHAs in 5 states to participate in a pre-claim review process for their Medicare patients.

    Beginning with Illinois on August 1, 2016, CMS will require HHAs to submit supporting documentation for services while beneficiaries are receiving care. CMS will review the pre-claim and make a review decision "generally within 10 days," according to a CMS fact sheet. The other 4 states—Florida, Texas, Michigan, and Massachusetts—will be phased into the program during the rest of the year and into 2017.

    According to CMS, the documentation will be "the same type of documentation [HHAs] currently gather for payment, only HHAs will submit it earlier in the process." The new program does not change eligibility standards, and CMS states that it will allow HHAs to submit additional pre-claim documentation to support the claim should CMS find the initial submission lacking. HHAs can receive initial payments before CMS makes its pre-claim review decision, and if a claim is not approved during the pre-claim process, the HHA can appeal.

    Once the program has been operational for 3 months in a demonstration state, HHAs that submit a claim without a pre-claim review may still receive payment, but at a 25% reduction of the full claim amount—if they they are approved at all. These claims will go through the same pre-claim review process and may be subject to denial.

    The new program is an attempt to tighten up an HHA claims process that reached a 59% improper payment rate in 2015, with a large proportion of those improper claims linked to insufficient documentation. "The pre-claim review demonstration will help educate HHAs on what documentation is required and encourage them to submit the correct documentation," CMS states.

    The project is also designed to shift CMS away from a "pay and chase" approach that forces the agency to demand repayment of money already spent and toward a more preventive model. According to CMS, "most" of the 5 states targeted for the demonstration project have been identified as at "high risk" for improper payment.

    APTA will monitor implementation of the program to evaluate its effects on access to physical therapy, and will work with other stakeholders to ensure that CMS does not unfairly penalize all HHAs and the physical therapists who practice in home health settings.

    Improved Direct Access to PTs Now Law in Louisiana

    After a sometimes-contentious struggle, individuals in Louisiana now have improved direct access to physical therapist (PT) services.

    On June 6, Louisiana Gov Bel Edwards signed SB 291, which allows PTs to treat without a referral or previous medical diagnosis for up to 30 calendar days, a significant improvement over what had been one of the most restrictive direct access laws in the country. After 30 days, a direct access patient must be referred to a physician, dentist, podiatrist, or chiropractor if there is no measurable or documented functional improvement of the patient. The legislation was sponsored by state Sen Fred H. Mills Jr (R) and advocated by the Louisiana Physical Therapy Association (LPTA).

    All physical therapists who have a DPT or 5 years of clinical practice experience are eligible for direct access.

    The win for citizens and Louisiana PTs was not an easy one: opponents of the bill, led by the state's orthopedic surgeons association, launched an active campaign to block passage, arguing that direct access would put patients at risk should a PT miss a health condition that would require attention from a physician. In the end, the bill passed in both the Louisiana House and Senate by wide margins.

    “The passage of SB 291 and allowing the citizens of Louisiana to choose physical therapy directly was by far the most widely debated bill of the 2016 legislative session," said Cristina Faucheux PT, LPTA legislative chair. "Its passage paves the way for the citizens of Louisiana to have unparalleled services and be in the driver’s seat of their health care dollars."