• News New Blog Banner

  • Final Outpatient Payment Rule From CMS Eases Supervision, Moves Ahead With 'Site Neutral' Payment Despite Lawsuit

    In this review: Medicare Program: Changes to Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs (final rule)
    Effective date: January 1, 2020
    CMS Fact Sheet

    The big picture: Continued trends toward easing supervision burdens, and a contested effort to reduce payment variation (that doesn't really affect PTs)
    The US Centers for Medicare and Medicaid Services (CMS) is pushing for an outpatient environment in which overall payments vary less according to who owns a facility, according to the final Medicare outpatient payment system rule set to go into effect on January 1, 2020.

    The rule moves ahead with CMS efforts to establish a "site neutral" payment model in its payment for physician services, doing away with a system that pays so-called "off campus" hospital-owned facilities more than it does their independent equivalents. The plan hit a recent snag when a federal judge refused to impose a stay on a court ruling in September in favor of plaintiffs, including the American Hospital Association, that sought to block the rollout of the site-neutral plan. CMS stated in the final rule’s fact sheet that they do not believe “it is appropriate at this time to make a change to the second year of the two-year phase-in of the clinic visit policy. The government has appeal rights, and is still evaluating the rules and considering, at the time of this writing, whether to appeal from the final judgment.” Because physical therapy services in outpatient settings are paid under the CMS physician fee schedule, PTs aren't affected by CMS' hoped-for change.

    The final rule also includes an APTA-supported move toward easing supervision burdens placed on hospitals by way of changed supervision requirements for outpatient therapeutic services in all hospitals. Beginning January 1, the requirements will move from "direct" supervision to "general" supervision, meaning that while a given procedure may be furnished under a physician's overall direction and control, the physician's physical presence no longer will be required during the performance of the procedure. The change is viewed as a particularly positive one for critical-access hospitals and other facilities in underserved areas.

    Also notable in the final rule

    • Payment rates for outpatient hospitals and ambulatory surgical centers (ASCs) will increase by 2.7%.
    • CMS said it will consider the stakeholder feedback it received on its proposal to add 4 safety measures to the Outpatient Quality Reporting Program (Hospital OQR Program) in the future. These measures already are required of ASCs: patient falls, patient burns, wrong site/side/procedure/implant, and all-cause hospital transfers/admissions.
    • CMS recognized that it received over 1,400 comments regarding its proposal to require hospitals to make their standard charges public for all items and services, and stated that it would summarize and respond to these comments in a future final rule.

    Worth watching: prior authorization
    Prior authorization also figures into the new rule, which requires preapproval for 5 cosmetic procedures including vein ablation. While this doesn't directly affect services associated with physical therapy, APTA advocates in general against prior authorization requirements that slow the delivery of care and limit patient access to appropriate interventions. APTA regulatory affairs staff will continue to pay particular attention to future rulemaking in this area.

    Final DMEPOS Rule Attempts to Shape a Clearer, More Predictable System

    In this review: Medicare Program: Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) Fee Schedule Amounts, DMEPOS Competitive Bidding Program (CBP) Amendments, Standard Elements for DMEPOS Order, and Master List of DMEPOS Items Potentially Subject to a Face-to-Face Encounter and Written Order Prior to Delivery and/or Prior Authorization Requirements (final rule)
    Effective date: January 1, 2020
    CMS Fact Sheet

    The big picture: A rule that attempts to keep up with the rapid development of new and different DMEPOS
    The US Centers for Medicare and Medicaid Services (CMS) aims to make payments for devices a little more predictable in light of the ever-increasing—and ever-advancing—range of options available to providers and patients. CMS intends to accomplish this goal by way of a "comparable item analysis" system that the agency thinks will help make it easier to nail down exactly what Medicare will pay for those devices. The new rule takes effect January 1, 2020.

    The idea is that when old and new items are comparable, CMS will use the fee schedule amounts for the existing older item to determine payment amounts for the new one. If there are no comparable older items, CMS says it will base payment on commercial pricing data such as internet pricing and supplier invoices. Those prices for the noncomparable items won't necessarily stay fixed: if commercial pricing drops, so will CMS rates. CMS identified 5 main categories upon which new DMEPOS items can be compared with older ones: physical components, mechanical components, electrical components (if applicable), function and intended use, and additional attributes and features.

    Also notable in the final rule

    • CMS is revamping requirements around face-to-face meetings between providers and patients in need of DMEPOS that "may have created unintended confusion for stakeholders." The current requirements—essentially a collection of ad-hoc provisions that have accrued over the past 13 years—will be replaced with what CMS describes as a "single list of DMEPOS items potentially subject to a face-to-face encounter and written orders prior to delivery, and/or prior authorization requirements."
    • CMS will no longer require contract suppliers to notify CMS 60 days in advance of a change of ownership (CHOW). Instead, CMS will require notification no later than 10 days after the effective date of the CHOW. Additionally, CMS is removing the distinction of a “new entity,” but the rule retains the successor entity requirements.

    Final 2020 Fee Schedule: CMS Relents on PTA Differential System for 2020; Presses on With Planned 8% Cut to Physical Therapy in 2021

    A major win, and a major challenge: that's what APTA and the physical therapy profession are facing now that the US Centers for Medicare and Medicaid Services (CMS) has released the final 2020 Medicare physician fee schedule. While the agency seems to have listened to critics and made significant positive changes to the way it will calculate payment when therapy services are delivered "in part" by a physical therapist assistant (PTA), it inexplicably ignored thousands of comments, including a letter from members of Congress, calling for reconsideration of a proposed 8% cut for physical therapy payment and host of other disciplines in 2021. The planned cuts set the stage for intense advocacy efforts by APTA and other professional organizations representing a wide range of health professions including psychologists, occupational therapists, ophthalmologists, chiropractors, and clinical social workers. [CMS has also issued a fact sheet and press release on the final rule.]

      

    The win: CMS backed off from an ill-advised system to calculate when therapy services delivered "in part" by a PTA would trigger 15% lower Medicare Part B payments beginning in 2022.

    Background: It wasn't CMS' idea to create a code modifier (CQ or CO) to denote services delivered "in part" by a PTA or occupational therapy assistant (OTA)—that was something introduced by federal law—but the way CMS proposed to roll out the system lacked understanding for the real world of physical therapy care delivery. In addition to the proposal being misinformed, it was overly burdensome, and would've likely reduced patient access to needed care.

    What was proposed: CMS forwarded the idea of a "de minimis" 10% standard that would trigger use of the modifier whenever a PTA or OTA provided outpatient therapy services for 10% or more of the total time spent furnishing the service. The proposal stipulated, among other things, that the modifiers be applied to the claim when services were delivered concurrently with a physical therapist (PT), and required all codes to be accompanied by a written explanation of why the modifier was or wasn't used.

    What's in the final rule: APTA and its members engaged in an intensive advocacy effort around these provisions, and CMS reconsidered its approach, adopting a system that's consistent with many of the association's recommendations. Among the wins in the new rule:

    • When the PT is involved for the entire duration of the service and the PTA provides skilled therapy alongside the PT, the CQ modifier isn't required.
    • When the same service (code) is furnished separately by the PT and PTA, CMS will apply the de minimis standard to each 15-minute unit of codes—not on the total PT and PTA time of the service, allowing the separate reporting, on 2 different claim lines, of the number of units to which the new modifiers apply and the number of units to which the modifiers do not apply.
    • The proposed documentation requirements are scrapped.

    "This is a huge win for physical therapy under Medicare," said Kara Gainer, APTA director of regulatory affairs. "When we speak with a unified voice, make a clear case for our position, and offer viable options, we can make a difference with CMS. In this case, the difference our members made was huge."

     

    The challenge: For now, CMS is sticking to its proposal to cut payment for physical therapy providers by an estimated 8% beginning in 2021.

    Background: CMS thinks that values for office/outpatient evaluation and management (E/M) codes are too low—an opinion that APTA doesn't necessarily oppose.

    What was proposed: The Medicare physician fee schedule is budget-neutral. To increase values for the E/M codes while maintaining budget neutrality under the fee schedule, CMS proposed cuts to other codes to make up the difference beginning in 2021. Under the plan, physical therapy could see code reductions that may result in an estimated 8% decrease in payment. Other professions stand to lose as well: for example, ophthalmology would see a 10% cut, audiology would face a 6% reduction, chiropractic care would drop by 9%, and clinical social workers would see payment decline by 6%. In total, 36 specialties are facing reimbursement reductions in 2021. However, CMS has not yet determined the actual cuts to each code.

    What's in the final rule: Despite a flood of comments into CMS—more than 10,000 from APTA members alone—and a collaborative advocacy effort among professional organizations that included a letter signed by 55 members of Congress opposing the cuts and a provider sign-on letter signed by 10 associations, CMS left the proposal untouched in the final rule.

    CMS briefly acknowledges the reaction it received, writing that "we understand commenters' concerns with the magnitude of the redistributive adjustment necessary." The agency explains that it was reluctant to make any changes to the plan given that "we do not know the magnitude of redistribution resulting from other policies we may adopt through rulemaking before then," and characterizes a table of proposed 2021 code valuation adjustments included in the final fee schedule as being "for illustrative purposes only."

    "APTA made it very clear to CMS that the association and its members oppose the cuts proposal for 2021, and Congress reinforced APTA’s message," said Katy Neas, APTA executive vice president of public affairs. "APTA and its members, along with literally thousands of other health care providers, made compelling arguments and offered thoughtful alternatives that were seemingly completely ignored as the final rule was drafted. We are taking CMS very seriously when it says that this plan is subject to change. We've brought the association's voice to bear on the PTA modifier issue, and CMS listened. Over the next 12 months, we will leverage every possible opportunity – working with Congress and CMS --to change this flawed policy."

     

    More from the fee schedule: MIPS continues to expand, and CMS continues to move toward a more streamlined system.

    The final rule also makes changes to the Merit-based Incentive Payment System (MIPS). Starting in 2020, CMS will add measures for diabetic foot and ankle care; peripheral neuropathy: neurological evaluation and prevention evaluation of footwear; screening for clinical depression and follow-up plan; falls screening and plan of care, elder maltreatment screen and follow-up plan; preventive care and screening: tobacco use: screening and cessation intervention; dementia: cognitive assessment, functional status assessment, and education and support of caregivers for patients with dementia; falls: screening for future fall risk; and functional status change for patients with neck impairment. The rule also removes 2 measures: pain assessment and follow-up, and functional status change for patients with general orthopedic impairments.

    Other changes to MIPS include the following:

    • Data completeness for the 2020 performance year will be set at a 70% sample for both Medicare Part B claims-based reporting and clinician or group reporting via a registry.
    • Groups will be able to attest to an improvement activity when at least 50% of the MIPS-eligible clinicians perform the activity, at a rate of at least 50% of the group's providers with a National Provider Identifier (NPI) performing the same activity for the same 90 continuous days in the performance period.
    • The Promoting Interoperability category will continue to be reweighted for PTs by CMS in 2020, meaning that PTs won't be scored in this category.
    • MIPS-eligible clinicians with a final score of 45 will receive a neutral payment adjustment in 2020, with the score rising to 60 points for the 2021 payment year. The exceptional performance bonus will be triggered with a score of 85 points in both 2020 and 2021.
    • CMS will also continue its shift to a streamlined version of MIPS, which it has dubbed "MIPS Value Pathways," (MVPs) for 2021 and beyond.
    •  

    Also notable in the 2020 PFS: KX modifier thresholds, dry needling, biofeedback codes, negative pressure wound therapy, and more.

    As always, the fee schedule rule is expansive. Here are some quick takes on other 2020 PFS provisions of interest to the physical therapy community.

    The KX modifier gets a slight bump. The threshold amount for use of the KX modifier will rise from $2,040 to $2,080 for physical therapy and speech-language pathology services combined, and by the same amount for occupational therapy services. The targeted medical review threshold remains at $3,000. These changes will be incorporated into APTA's multiple procedure payment reduction (MPPR) calculator, which will be live before January 1, 2020.

    Dry needling codes have been added—but CMS won't be covering them. The final rule adds 2 dry needling codes (1 for insertions in 1-2 muscles, and another for insertions in 3 or more), but the codes will remain unpaid unless a national coverage determination says otherwise. If the codes were covered, CMS believes they should be considered as "sometimes therapy" procedures rather than "always therapy."

    Biofeedback codes are now available as "sometimes therapy." Codes related to biofeedback training of perineal muscles or anorectal or urethral sphincters have been added to the biofeedback family, and valued at .90 work RVU for the initial 15 minutes of treatment and .50 work RVU for each additional 15 minutes of one-on-one contact.

    Negative wound pressure gets coding values. After some 3 years of work, CMS has established relative value units (RVU) and direct practice expense inputs for codes associated with negative wound pressure therapy, with a .41 work RVU for code 97607 (vacuum-assisted drainage collection for total wound surface area of 50 square centimeters or fewer) and .46 work RVU for 97608 (vacuum-assisted drainage collection for total wound surface area of 51 square centimeters or more).

    CMS remains unclear when it comes to PTs' use of remote physiologic monitoring codes. Last year, CMS said qualified health care professionals can furnish and bill for these services, as long as it’s within their scope of practice. APTA interprets this to include PTs, who are included in the American Medical Association’s definition of "qualified health professionals." In response to APTA’s continued request for clarity from the agency, CMS advised that PTs with billing questions related to these codes contact their Medicare administrative contractor(s). In the final rule, CMS says it will "consider these and other questions." Once again, the issue seems to be up in the air.

    Final Home Health Rule Cements PDGM, Allows PTAs to Perform Maintenance Therapy

    When it comes to its most talked-about provisions, the US Centers for Medicare and Medicaid Services' (CMS) final rule for home health payment under Medicare isn't much of a change from the proposed version released earlier this year, meaning that an entirely new payment system will indeed be rolled out beginning January 1. But other parts of the rule have been tweaked—and in several areas, those tweaks represent wins for the physical therapy profession and the patients it serves in home health settings. [In addition to the lengthy final rule, CMS also offers a fact sheet summary.]

    It's official: PDGM is on for 2020.
    There wasn't much debate about whether this would happen, but the final rule eliminates any doubt: the Patient-Driven Groupings Model (PDGM) will be the system under which CMS pays home health agencies (HHAs). It's a big change, and APTA offers extensive information on the details of the model, but the bottom line is that the PDGM moves care from 60-day to 30-day episodes and eliminates therapy service-use thresholds from case-mix parameters. The system classifies episodes according to a set of 5 major buckets and subsets within those buckets. Patients are assigned a status within the 5 major areas, and within some of those areas they can be assigned to more detailed clinical categories—the combination of categories assigned to a patient generates a particular case-mix grouping. CMS says it will monitor how HHAs are operating under the PDGM, including the provision of therapy services.

    Overall payments will increase by 1.3%.
    CMS projects an annual increase of about $250 million in payments related to home health.

    "Behavioral adjustments" will still be used—but they won't be as large as proposed.
    In anticipation of the possibility that HHAs will alter their practices to maximize payment under the PDGM, CMS had proposed a "behavioral adjustment" that reduced payments by 8.01%. The final rule lowers the negative adjustment to 4.36%.

    PTAs will be able to perform maintenance therapy under the home health benefit.
    The final rule follows through on an APTA-supported proposal to allow physical therapists assistants (PTAs) and occupational therapy assistants (OTAs) to perform maintenance therapy services under a maintenance program established by a qualified therapist, as long as the services fall within scopes of practice in state licensure laws. In addition to supervising the services provided by the PTA or OTA, the qualified therapist still would be responsible for the initial assessment, plan of care, maintenance program development and modifications, and reassessment every 30 days.

    A question about pain still will be available to patients.
    In addition to removing a quality-reporting measure on to pain interfering with activity from the Quality Reporting Program, CMS also proposed eliminating a home health consumer survey question about whether the patient and provider had discussed pain in the past 2 months. APTA and other organizations pressed for that question to remain, and CMS relented. The pain interfering with activity quality measure has been removed, however.

    Split payments are going away, and Requests for Anticipated Payment (RAPs) will be gone by 2022—but a modified RAP process will be in place beginning in 2021.
    CMS is phasing out the split percentage payment approach beginning in 2020. The split percentage payment amount, paid in response to a RAP, will shift from an upfront 60%-initial, 50%-subsequent payment for each 60-day period to 20% for both initial and subsequent 30-day periods of care. Then, beginning in 2021, there will be no upfront payment made in response to a RAP; however, all HHAs will be required to submit a "no-pay” RAP every 30 days to alert the claims processing system that the beneficiary is under a home health period of care. HHAs must submit the “no-pay” RAP within 5 calendar days of each 30-day period or be subject to a late penalty. Beginning in 2022, CMS will eliminate RAPs and instead require HHAs to submit a Notice of Admission (NOA) every 30 days; agencies must do so within 5 calendar days of each 30-day period or be subject to a payment penalty. CMS says that because they are removing upfront payment associated with the RAP, the agency is relaxing the information needed to submit the “no-pay” RAP and subsequent NOA.

    Want more on PDGM? Sign up for the November 20 APTA "Insider Intel" phone-in session, where the home health system will be discussed along with the final Medicare physician fee schedule.

    UnitedHealthcare to Expand Program Waiving Copays, Deductibles for Physical Therapy for LBP

    Momentum around better insurer coverage of physical therapy continues to build at UnitedHealthcare (UHC), which announced that it's moving ahead to expand a pilot project that waives copays and deductibles for 3 physical therapy sessions for patients with new-onset low back pain (LBP). The pilot follows a multiyear collaboration between APTA, OptumLabs®, and UHC.

    The program is targeted at UHC enrollees in employer-sponsored plans who experience new-onset LBP and seek care from an outpatient in-network provider. The program fully covers up to 3 visits to a physical therapist (PT) or chiropractor in addition to visits normally covered. When the program was rolled out in June, it was limited to plans sponsored by employers of more than 50 employees in Florida, George, Connecticut, North Carolina, and New York. The expanded pilot, which begins January 1, 2020, will extend to self-funded plans with 2 to 50 employees in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia.

    APTA has been working with UHC and OptumLabs to investigate both the efficacy of physical therapy as a first treatment option for LBP and the effects insurer payment policies have on patient access to more conservative approaches to the condition. Those efforts yielded 3 research articles: a study affirming that higher copays and payer restrictions steer patients away from conservative LBP treatments; an analysis that found lower odds of early and long-term opioid use among patients who see a PT first for LBP; and an investigation that linked unrestricted direct access to a PT for LBP to lower health care utilization and costs than would occur with provisional access to physical therapy. APTA cosponsored all 3 studies.

    "The evidence supporting the use of physical therapy as a first-line, widely accessible treatment for low back pain continues to grow, and insurers like UnitedHealthcare are paying attention and moving from analysis into action," said Carmen Elliott, APTA's vice president of payment and practice management. "APTA's collaboration with UHC and Optum has helped UHC establish some on-the-ground changes that we hope will pave the way for a true sea change in the way insurers think about the value of physical therapy."

    House, Senate Legislation Could Lead to Major PT Telehealth Opportunities in Medicare

    Physical therapists (PTs) have tended to be largely left out of opportunities to provide telehealth services through Medicare, but that could change significantly if federal lawmakers support APTA-supported legislation recently introduced in the US Congress.

    This week, legislators on Capitol Hill announced the introduction of companion bills in the US Senate and House of Representatives that could open the doors to wider use of telehealth in Medicare, including use by PTs. Known as the "CONNECT for Health Act of 2019" (CONNECT), the bills now in the House (HR 4932) and Senate (S 2741) would remove many current restrictions on telehealth in Medicare and give the Secretary of Health and Human Services (HHS) broad authority to waive others. The legislation was introduced by members of the Senate and House telehealth caucuses, with Sen Brian Schatz (D-HI) and Rep Mike Thompson (D-CA) leading the efforts in their respective chambers.

    While the bill covers a lot of ground, it's the provisions allowing the HHS Secretary waiver power that should be of particular interest to PTs, according to Baruch Humble, APTA senior specialist for congressional affairs.

    "If this bill is successful, starting on January 1, 2021, the HHS Secretary could waive telehealth restrictions and open up opportunities for therapists to be reimbursed for telehealth services as long as those services don't limit or deny coverage and can reduce spending without sacrificing quality of care," Humble said. " That's a big step forward for Medicare."

    Baruch added that the waiver rules even have exceptions—namely, that even if a service doesn't reduce spending and maintain quality, a waiver could still be granted if the service was targeted at a high-need health professional shortage area. The waiver process would also be subject to an annual public comment process, and include regular data collection and reviews of waivers conducted no more frequently than every 3 years.

    The CONNECT Act includes another potential opportunity for PTs to participate in telehealth by way of programs created through the Center for Medicare and Medicare Innovation (CMMI).

    Provisions in the bill would direct CMMI to identify services that could deliver both outcome- and cost-effectiveness through telehealth. Physical therapy is among the services that could be reviewed by CMMI, which could design and test delivery models that could be adopted by Medicare, Medicaid, or the Children's Health Insurance Program.

    According to a summary created by the bills' sponsors, current Medicare restrictions that limit telehealth to certain rural areas, clinical sites, and types of providers create "barriers" to a service delivery method that "increases access to care in areas with workforce shortages and for individuals who have barriers to accessing care."

    The legislation is endorsed by more than 120 organizations, including AARP, the American Medical Association, and Kaiser Permanente. APTA not only endorsed the legislation but worked in collaboration with the American Occupational Therapy Association and the American Speech-Language-Hearing Association to advocate for their respective professions as the legislation was being drafted.

    "The CONNECT act is a win for the profession, not just because it opens the opportunity for telehealth by PTs beginning as early as 2021, but because it establishes a way for the profession to demonstrate, through data and outcomes, how a PT's use of telehealth could make a very real contribution to improved health," Humble said. "PTs using telehealth can play an important role on several health care fronts, particularly in terms of efforts to combat the opioid epidemic by reaching rural and underserved communities with nonpharmacological options to chronic pain."

    APTA government affairs staff will continue to track the progress of the legislation. Stay tuned for opportunities to advocate in support of the bills.

    APTA offers a summary of research on telerehabilitation's effectiveness and a collection of PT testimonials supporting the use of telehealth. The legislation is just one of several bills and issues APTA is advocating on during this session of the US Congress, which includes APTA-supported legislation aimed at addressing administrative burden and prior authorization (HR 3107), PT student loan debt (HR 2802/S. 970), home health payment issues (S 433 / HR 2573), the Medicare fee schedule, self-referral, and more.

    Telehealth

    Senate sponsors of the CONNECT Health Act, led by Sen Brian Schatz (HI, at microphone) have introduced a bill that could provide opportunities for greater use of telehealth by PTs.

    Senate Report Calls for More Emphasis on Falls Prevention

    The US Senate Select Committee on Aging has released a report on falls prevention that presses for more concerted efforts to prevent falls among the elderly—including wider access to physical therapy and community-based programs. APTA 's comments submitted in advance of the report helped to shape the committee's final recommendations.

    Writing that "the statistics are staggering, and the stakes are high," the committee asserts that despite ample evidence supporting the effectiveness of falls prevention strategies, such programs aren't used widely enough in the country's health care system. The lack of attention to falls prevention comes at a cost to public health, the report states, with an estimated 25% of adults 65 and older experiencing a fall each year, resulting in falls now being ranked as the leading cause of death from unintentional injury among older adults in the US. And the costs are literal as well, according to the report, which cites estimates that falls-related health care spending topped $50 billion in 2015.

    The report calls for improvements in 4 broad areas: raising awareness, screening and referrals for preventive care, addressing modifiable risk factors such as home safety, and better understanding of the impacts of drugs—and drug combinations—on falls risk. Specific recommendations include a call for the Centers for Medicare and Medicaid Services (CMS) to better incorporate falls risk screening and medication review in its Annual Wellness Visit benefit, more research into the effects of polypharmacy on falls risk, and "continued investment in the development of and expanded access to evidence-based falls prevention programs."

    On the day the report was released, the committee held a special hearing on the topic that included representatives from the National Council on Aging (NCOA), the National Osteoporosis Foundation (NOF), and MaineHealth, a hospital system that has incorporated an effective falls prevention program throughout its facilities and in communities. Nearly every speaker mentioned the importance of physical therapy and physical therapists (PTs) in effective prevention and rehabilitation programs, with NCOA Senior Director for Healthy Aging Kathleen Cameron calling for expanding payment to physical and occupational therapists in the Welcome-to-Medicare and Annual Wellness Visit programs, and the witness for NOF describing physical and occupational therapy as "critically important" to recovery from a fall.

    "The evidence is clear that falls prevention efforts work, and there are a host of prevention programs out there that have a potential to make a difference in what is becoming an increasingly alarming trend," said Justin Elliott, APTA's vice president of governmental affairs. "We're extremely pleased to see that the select committee not only understands the need for change, but sees the role physical therapists and physical therapist assistants can play in responding to this public health challenge."

    That understanding of physical therapy's role after a fall wasn't just theoretical, at least for Committee Chair Sen Susan Collins (ME).

    Before entering all stakeholder remarks—including APTA's—into the record, Collins recounted her own experience of recovering from a broken ankle she sustained after a fall a few years ago. "I am forever grateful to the [occupational therapist] and PT who helped me gain function again," Collins said. "It was the [occupational therapist] and PT who really got me back on my feet and walking again."

    APTA offers a wide range of resources related to balance and falls. Check out this PT in Motion News article from September for links to tests and measures, learning opportunities, patient-focused resources, and more.

    CMS, HHS Propose More Exceptions to, Safe Harbors in Self-Referral Law

    The so-called "Stark law" that bars physicians from referring Medicare patients to services in which the physician has a financial interest turns 40 this year, and the US Department of Health and Human Services (HHS) thinks it's time to bring some of its provisions up-to-date in ways that accommodate alternative payment models (APMs). The proposals that have emerged are a mixed bag, some of which were opposed by APTA because of how they may weaken the self-referral law and create an uneven playing field for physical therapists (PTs).

    The changes surfaced as 2 sets of plans, one from the HHS Office of the Inspector General (OIG) and one from the Centers for Medicare and Medicaid Services (CMS). The CMS changes are aimed at decreasing regulatory burden and promoting coordinated care and APMs, while the HHS OIG proposals are focused on creating safe harbors in the law's anti-kickback provisions. In a fact sheet, CMS describes the proposals as including "a carefully woven framework of safeguards." But those safeguards don't touch APTA's main criticism of the Stark law—that it contains too many loopholes around the provision of "in-office ancillary services" (IOAS) that include physical therapy.

    The IOAS loophole in Stark has been a major focus of the association's advocacy efforts for years. As lawmakers on Capitol Hill were mulling over possible changes to Stark in 2018, APTA representatives met with federal legislators and staff, and provided comments to the US House of Representatives Ways and Means Health Subcommittee advising a caution around relaxing self-referral prohibitions. Later that year, the association provided comments to a CMS request for information on reform of Stark and created customizable letters for members to submit to add their individual voices to the effort. The APTA message: the uneven playing field created by the IOAS exceptions make it difficult for small and medium-sized PT-owned practices to meaningfully participate in APMs.

    In the end, the proposals released by CMS and OIG contain both understandable and potentially problematic elements. Among the proposed changes:

    New permanent exceptions to Stark for certain value-based arrangements: Participants in a "value-based enterprise" (VBE) would be able to access an exception to Stark, as long as the VBE meets requirements that it operates as a legitimate arrangement intended to achieve a value-based purpose.

    Exceptions for "non-abusive, beneficial arrangements between physicians and other healthcare providers": For example, hospitals would be able to donate cybersecurity technology to providers, and allowances would be made for data-sharing between primary care physicians and specialists.

    Safe harbors for certain types of relationships and activities: The HHS proposal offers protection from Stark for activities related to cybersecurity, electronic health records, warranties, and local transportation and telehealth for in-home dialysis, in addition to a safe harbor for a number of relationships between eligible participants in value-based arrangements.

    CMS is also soliciting comments about the role of price transparency in the Stark Law—specifically, whether to require that providers present patients with cost-of-care information for an item or service at the point of referral. The agency believes price transparency could empower patients to have conversations about costs with their physicians at the point of care and serve as an additional safeguard during referral. To that end, APTA will remind CMS, as it has in the past, that the IOAS exception creates a conflict of interest that can prevent patients from making well-informed decisions about their care. In particular, APTA will advocate for CMS to, at the very least, impose disclosure requirements around physician-owned physical therapy that are similar to those used for imaging—namely, that physicians must notify patients in writing that they are permitted to receive the service elsewhere at a potentially lower cost.

    "CMS' move toward APMs and other value-based care approaches is laudable, and all obstacles to that evolution should be examined," said Kara Gainer, APTA's director of regulatory affairs. "But at the same time, the dangers of conflict-of-interest should never be ignored, particularly if a system builds in the potential for conflicts that prevent providers from fully participating in these important new APMs. These proposals contain some sensible, much-needed provisions but may not go far enough in promoting fairness and patient choice."

    APTA will submit comments in response to both proposals. APTA also will continue to advocate for changes that close loopholes around IOAS, including adoption of the Promoting Integrity in Medicare Act (PIMA) of 2019 (HR 2143), a bill that seeks to end the IOAS exception.

    CMS Hospital Discharge Rule Puts the Focus on Patient Choice, Goals in Postacute Care

    In this review: Medicare and Medicaid Programs; Revisions to Requirements for Discharge Planning for Hospitals, Critical Access Hospitals, and Home Health Agencies, and Hospital and Critical Access Hospital Changes to Promote Innovation, Flexibility, and Improvement in Patient Care (final rule)
    Effective date: November 30, 2019
    CMS Press Release

    The big picture: A better patient discharge process that falls short in some areas
    The US Centers for Medicare and Medicaid Services (CMS) has released a final rule intended to support patient preferences around discharge planning for a move from a hospital or critical-access hospital (CAH) to a home health agency (HHA), skilled nursing facility (SNF), inpatient rehabilitation facility (IRF), or long-term care hospital (LTCH).

    While the new requirements include APTA-supported changes that help put patients at the center of discharge to postacute care (PAC) providers, the rule lacks provisions that would strengthen patient choice by including physical therapists (PTs) on the discharge planning team.

    The rule goes into effect on November 30, 2019.

    Notable in the final rule

    • Patients will receive a list of potential PAC facilities for discharge. Under the new rule, the hospital's discharge plan must include a list of the HHAs, SNFs, IRFs, or LTCHs that participate in Medicare and that serve a particular geographic area—in the case of HHAs, that would be the area as defined by the HHA; in the case of SNFs, IRFs, and LTCHs, it would be the geographic areas requested by the patient. The discharge planning team would also share key performance data related to the PAC providers under consideration.
    • The process for providing the PAC provider list is designed to keep the playing field level. In response to commenters who asked how hospitals and ACHs can avoid steering patients toward 1 PAC provider over another, CMS states that facilities are required to present objective data on quality and resource use measures specifically applicable to the patient’s goals of care and treatment preferences for all available PAC providers. Providers will also have to document all interactions around PAC care in the patient's medical record.
    • Patient goals must be the focus of the discharge plan. In an effort to create a more patient-centered process for discharge, CMS makes it clear that the plan must focus on the patient's goals and treatment preferences, and must include that patient and/or her or his active partners in the planning process.
    • Patients will be entitled to access their medical records. The final rule establishes that patients have the right to access their medical records in whatever format they prefer, providing that format is able to be produced.
    • HHA discharge planning time estimates will get an additional 5 minutes. CMS upped its estimates for the time it should take HHA PTs or nurses to complete information for discharge from the HHA from 5 minutes to 10 minutes. Some commenters advocated for as much as a 15-minute estimate, but CMS believes that most discharges will be uncomplicated and that the 10-minute estimate will be closer to an overall average.
    • The HHA discharge process will supply more information to patients. HHAs will be required to provide more information to patients who are discharged or transferred to another postacute care provider to help them select a provider that meets the patient’s needs and goals.

    What the rule doesn't do

    • PTs (and other relevant providers) aren't part of the discharge team requirements. Despite APTA and other commenters advocating that providers such as PTs, nutritionists, mental health professionals, and others be required to be included in the discharge team, CMS didn't make any changes, citing potential increases to the cost and complexity of the discharge process
    • Rehab nurses and respiratory therapists won't be required, either. CMS refused to follow the recommendations of some commenters that rehabilitation nurses and respiratory therapists be involved in the discharge needs evaluation and creation of the final plan.
    • Discharge instruction requirements aren't as detailed as in the proposed rule. Commenters expressed concerns with the proposed rules’ overly prescriptive discharge instructions for hospitals. CMS acknowledged these concerns and didn't finalize the requirements; however, under the new rule, hospitals can develop discharge instructions or share discharge information in accordance with applicable law earlier than the time of discharge.

    APTA will provide information on how to comply with the new requirements as it becomes available.

    CMS Releases a Burden Reduction Rule That Affects a Wide Range of Facilities, Settings

    In this review: Medicare and Medicaid Programs; Regulatory Provisions to Promote Program Efficiency, Transparency, and Burden Reduction; Fire Safety Requirements for Certain Dialysis Facilities; Hospital and Critical Access Hospital (CAH) Changes to Promote Innovation, Flexibility, and Improvement in Patient Care (final rule)
    Effective date: November 29, 2019, for most provisions; March 30, 2020, for implementation of hospital and critical-access hospital (CAH) antibiotic programs; March 30, 2021, for changes to Quality Assessment and Performance Improvement Programs in critical access hospitals
    CMS Press Release
    CMS Fact Sheet

    The big picture: An omnibus rule that could ease some regulatory burdens
    The US Centers for Medicare and Medicaid Services (CMS) has released a final rule aimed at reducing Medicare- and Medicaid-related regulatory burdens in a range of settings, from hospitals to home health care. And for the most part, the rule hits its target.

    The final rule includes provisions related to outpatient rehabilitation facilities, home health agencies, ambulatory surgical centers, hospitals, CAHs, psychiatric hospitals, transplant centers, X-rays, community mental health clinics, hospice care, and more. For the most part, the changes either lift or relax requirements, giving facilities more leeway in meeting reporting and other duties. CMS estimates the changes will save providers 4.4 million hours of paperwork time and result in $800 million in savings annually.

    Most provisions in the rule go into effect November 29, 2019.

    Notable in the final rule

    • Relaxed emergency preparedness requirements for most settings—except long-term care facilities (LTCs). The new rule changes a mandate for an annual self-review of a provider's or supplier's emergency program to every other year, except for LTCs, which will still have to submit reviews every year. The move to biennial requirements is also applied to training and testing around emergency preparedness (again, with the exception of LTCs), and allows providers to choose the type of test they administer—either a community-based full-scale test, or a facility-based exercise.

    CMS will also lift a requirement that Medicare and Medicaid providers and suppliers must document efforts to contact local, tribal, regional, state, and federal emergency preparedness officials, as well as document participation in "collaborative and cooperative planning efforts."

    • Less burdensome evaluation rules for home health aides, and more limited requirements around notifying home health patients of their rights. The final rule also gives home health agencies (HHAs) more latitude in how they assess the competencies of aides to allow for a "simulation" on a patient or "pseudo patient." In addition, aides who are found to be deficient in certain skills will need to undergo retraining and revaluation only on those particular skills, and be subject to a comprehensive process.

    HHAs will also be operating under less rigid rules about notification of patient rights: instead of requiring verbal notification of all patient rights, providers will be required to provide notification only of rights related to Medicare, Medicaid, or other federal programs, as well as potential patient liabilities as described in the Social Security Act.

    Comprehensive outpatient rehab facilities get a break on utilization review plans. The new rule reduces the frequency of utilization reviews from quarterly to annually.

    • More flexible requirements for hospitals around the use of comprehensive medical histories and physical examinations (H&P) presurgery/preprocedure. Instead of requiring H&P, hospitals will be permitted to use a presurgery/preprocedure assessment if, in the hospital's opinion, that's the appropriate way to go. The assessment option must be well-documented, and hospitals must consider the patient's age, diagnoses, type and number of procedures to be performed, standards of practice related to specific patients and procedures, and all relevant state and local laws.
    • Fewer requirements for hospitals and CAHs that provide swing beds, and easier reporting requirements for CAHs. The new rule changes requirements for swing bed providers—hospitals and CAHs that designate some of their beds for skilled nursing facility care—in a few ways: CMS is removing requirements that the facilities offer patients opportunities to "perform services for the facilities" if they choose, as well as requirements mandating ongoing activity programs, a full-time social worker for facilities with more than 120 beds, and the provision of 24-hour emergency dental care.

    CAHs will see some lessened reporting burdens as well—they will no longer be required to disclose the names of people with a financial interest in a CAH, and a current annual requirement to conduct a policy and procedures review will be changed to every other year.

    APTA's efforts, and the possibility of more to come
    The new rule is part of CMS' broad "patients over paperwork" initiative that continues to explore ways to decrease the regulatory burden on facilities and individual providers, and APTA has seized every opportunity to provide input to CMS on the topic. The latest rule reflects only some of the areas addressed by the association, according to Kara Gainer, APTA's director of regulatory affairs.

    "As we've done in nearly every call for comment on administrative burden, APTA and individual PTs have highlighted multiple areas that we think are in need of change," Gainer said. "This rule is a step in the right direction, but there are many more steps that should be taken if CMS truly wants to fulfill its commitment to putting patients over paperwork."

    APTA will provide information on how to comply with the new requirements as it becomes available.

    Want to find out more about the new rule? CMS is holding a national stakeholder call on the burden reduction rule on Thursday, October 3, 2019, from 1:00 pm-2:00pm ET. To join in, call 1-888-455-1397 and use conference ID 4114189. TTY Communications Relay Services are available for the hearing or speech- impaired. For TTY services dial 7-1-1 or 1-800-855-2880. A Relay Communications Assistant will help.