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  • 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.

    JAMA: Americans Aren't Any More Physically Active Than in 2007—And They're Increasingly Sedentary

    Here's some news you shouldn't take sitting down: since the release of national physical activity (PA) guidelines in 2008, Americans haven't really made a dent in improving PA rates, while "significantly" increasing the amount of time spent on sedentary behavior. Those findings were the major revelations from a first-of-its-kind study that factored work, leisure-time, and transportation-related PA (most PA studies have focused on leisure-time activity only).

    The study, published in JAMA Network Open, analyzed results from 27,343 adults who participated in the National Health and Nutrition Examination Survey (NHANES) from 2007 to 2016. Researchers wanted to find out what percentage of Americans met the US Department of Health and Human Services' activity guidelines, and how that rate may have changed since the release of the guidelines in 2008. Those guidelines, updated in 2018, recommend at least 150 minutes per week of moderate-intensity PA or 75 minutes of vigorous PA (or an equivalent combination of both).

    What they found wasn't encouraging. Over the 10-year study period, the percentage of Americans who reported meeting the PA guidelines remained nearly flat—from 63.2% in 2007-2008 to 65.2% in 2015-2016.

    Even worse, researchers noted a significant increase in sedentary behavior over the same time period, from 5.7 hours per day in 2007-2008 to 6.4 hours per day in 2015-2016. The increase was recorded in nearly every demographic subgroup in the study, and was highest among individuals with college-or-higher educations and individuals who are obese.

    There were a few bright spots in the findings. The guideline-adherence rates for non-Hispanic black individuals rose by nearly 10 percentage points, from 52.7% to 62.6%. Other groups that recorded notable improvements included Americans 65 and older (44.3% to 49.1%), women (55.3% to 59%), current smokers (63.9% to 68.4%), and individuals with obesity (55.4% to 61.5%).

    Generally, however, there was more bad news than good. Not only did PA guideline adherence remain static overall, it actually declined, albeit slightly, for some groups including individuals 50-64 (61.3% to 60.4%) and those who are overweight (66.8% to 65.4%). The decline was most steep among individuals with less than a high school education, whose rates dropped from 53.3% in 2007-2008 to 49.4% in 2016-2017.

    Making matters worse, of course, was the rise in sedentary behavior, which was particularly notable among individuals 40-49 (from 5.4 hours to 6.2 hours), non-Hispanic whites (5.9 to 6.6), Americans with a college degree or above (5.8 to 6.5), people with obesity (5.8 to 6.4), and individuals with family income less than 1.31 times the poverty level (5.3 to 6).

    "Both insufficient [PA] and prolonged sedentary time are associated with a high risk of adverse health outcomes, including chronic diseases and mortality," authors write. "Our findings highlight a critical need for future public health efforts to aim for not only an increase in [PA] but also a reduction in sedentary time."

    APTA is a strong supporter of the HHS guidelines and the importance of PA. The association's prevention and wellness webpage provides resources on how physical therapists and physical therapist assistants can help individuals become more physically active. Additionally, the association's Council on Prevention, Health Promotion, and Wellness connects members interested in physical therapy's role in improving health. APTA is also an organizational partner in the National Physical Activity Plan Alliance and has a seat on its board of directors; the association also has a representative on the board of the National Coalition for the Promotion of Physical Activity.

    Research-related stories featured in PT in Motion News are intended to highlight a topic of interest only and do not constitute an endorsement by APTA. For synthesized research and evidence-based practice information, visit the association's PTNow website.

    IRFs Receive 2.5% Increase From CMS in FY 2020; Additional Reporting Requirements in FY 2022

    In a final rule from the US Centers for Medicare and Medicaid (CMS), inpatient rehabilitation facilities (IRFs) will see a 2.5% payment increase in the 2020 fiscal year (FY), which begins October 1, 2019—an approximate boost of $210 million. But they'll also need to prepare for some expanded reporting measures in the years to come—including a requirement to report data on social determinants of health.

    Reporting requirements won’t change much in FY 2020. However, beginning with the FY 2022 IRF Quality Reporting Program (QRP), IRFs will be required to provide certain standardized patient assessment data (SPADE) to CMS. The additional SPADE requirements are aimed at bringing IRFs up to speed with provisions of the 2014 IMPACT Act, a law that mandated more uniformity in reporting across postacute care (PAC) settings. In a fact sheet on the final rule, CMS writes that the addition of these SPADES "will improve coordination of care and enable communication."

    Specifically, CMS will adopt the SPADES on pain interference on sleep, therapy, and day-to-day activities, provisions being added in light of the opioid crisis. CMS is considering adding future SPADEs including dementia, bladder and bowel continence, care preferences, advance care directives and goals of care, caregiver status, veteran status, health disparities and risk factors, and sexual orientation. Also on CMS' radar: assessments related to opioid use, and frequency, exchange of electronic health data, and interoperability.

    Beginning in FY 2022, IRFs will be required to report patient data on admissions and discharges dating back to October 1, 2020, in the following areas: cognitive function and mental status; special services, treatments, and interventions; medical conditions and comorbidity; impairment; and a new category—social determinants of health (SDOH). IRFs have been reporting on some components of these areas since 2018, mostly related to function, pressure wounds, and skin integrity.

    To gather cognitive function and mental status data, IRFs will be now required to use the standardized items of Brief Interview for Mental Status (BIMS) and Confusion Assessment Method (CAM). APTA supported these in its comments but advised caution, expressing concerns that the assessments aren't sensitive enough to pick up mild-to-moderate cognitive impairments. The new SDOH would gather data on race, ethnicity, preferred language, interpreter services, health literacy, transportation, and social isolation—factors that CMS writes "[have] been shown to impact care use, cost, and outcomes for Medicare beneficiaries."

    CMS also finalized 2 new process measures; one having to do with whether a provider receives a current reconciled medication list at discharge or transfer, and another relating to whether the patient, family, or caregiver receives a similar list upon discharge from a PAC setting.

    Among other elements of the final rule:

    CMS backs away from weighted motor score. While CMS had proposed to use a weighted motor score to assign patients to case mix groups, it finalized the use of an unweighted motor score starting in FY 2020 “to ease providers’ transition to the use of the quality indicator data items for payment purposes beginning on October 1, 2019.” APTA had expressed in its comments concern about moving to a weighted motor score, specifically about the de-emphasis on patient mobility and that the proposed motor score weight index may compromise access to physical therapy in the IRF setting.

    The compliant IRF list is gone. CMS will stop publishing a list of IRFs that successfully met reporting requirements on its Inpatient Rehabilitation Facility Quality Reporting Program website.

    Reporting for some baseline nursing facility residents will decrease. Specifications of the discharge-to-community PAC measure would be altered to exclude baseline nursing facility residents.

    IRFs will make the call on who's considered a "rehabilitation physician." The final rule will loosen the definition of "rehabilitation physician," allowing individual IRFs to establish their own definitions.

    Final SNF Rule Sets New Payment System Into Motion October 1

    It's final: the US Centers for Medicare and Medicaid Services (CMS) is moving ahead with a rule governing skilled nursing facilities (SNFs) that's almost identical to what it proposed in April, including a change advocated for by APTA—a revised definition of what constitutes "group therapy" in SNFs. Aside from that alteration, it's a rule that hews to CMS' original plans to dramatically change the payment system for SNFs.

    As anticipated, the final rule proceeds with implementation of the Patient-Driven Payment Model (PDPM). The model is based on a resident's classification among 5 components (including physical therapy) that are case-mix adjusted, and employs a per diem system that adjusts payment rates over the course of the stay. APTA has developed a number of resources on PDPM.

    Other notable elements of the final rule:

    • In a win for APTA and its members, CMS moved away from a rigid 4-person definition and adopted the association's recommendation that the definition of group therapy as 2 to 6 patients doing the same or similar activities—the same definition used in inpatient rehabilitation settings.
    • The final rule adopts a "subregulatory" process to keep up with nonsubstantive updates to the ICD-10 codes used in PDPM, while substantive changes will be made through the traditional notice-and-comment rulemaking process.
    • CMS will implement 2 new quality measures—transfer of health information to the provider-post-acute-care, and transfer of health information to the patient-post-acute-care—to be provided by the SNF at the time of transfer or discharge.
    • The rule also adopts a number of standardized patient assessment data elements that assess cognitive function and mental status; special services, treatments, and interventions; medical conditions and comorbidities; impairments; and social determinants of health.
    • CMS projects aggregate payments to SNFs will increase by $851 million, or 2.4%.

    PT in Motion News covered the PDPM in detail when the rule was proposed. Since that time, APTA has launched an education campaign on the new system that includes a webpage on PDPM as well as a prerecorded webinar and Q and A session. A live webinar with CMS on SNF PDPM and demonstrating value is scheduled for September 4.

    Proposed Outpatient Payment Rule From CMS Continues Previous Trends

    The US Centers for Medicare and Medicaid Services (CMS) is pushing for an outpatient environment in which payments vary less according to who owns a facility, hospitals get a supervision break, and patients have access to clear information on how much they're being charged for items and services. All 3 concepts figure heavily into the proposed 2020 outpatient payment system (OPPS) rule.

    The proposed rule, released July 29, would complete a 2-year CMS effort to move toward a "site neutral" payment model in its reimbursements for physician services, doing away with a system that pays so-called "off campus" hospital-owned facilities more than it does their independent equivalents. Payment for physical therapy services in outpatient settings are paid under the CMS physician fee schedule and so are not impacted by the OPPS site-neutral policies.

    Other trends continue as well, including an APTA-supported move toward easing supervision burdens placed on hospitals. The proposed rule would change supervision requirements for outpatient therapeutic services in all hospitals from "direct" to "general," meaning that while a given procedure would 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.

    A shift toward greater transparency also is reflected in the proposed rule, with CMS aiming to require hospitals to make their standard charges public for all items and services. These standard charge lists—a facility's gross and payer-negotiated charges for supplies, procedures, beds and food, practitioner services, and a host of other items—would also be required for a limited set of so-called "shoppable services" that can be scheduled by a consumer in advance. CMS puts teeth into the requirement through monetary penalties and publication of violations for facilities that don't comply.

    Another trend APTA is watching: prior authorization, which in the proposed rule would be required for several cosmetic procedures including rhinoplasty. 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.

    Also included in the proposed OPPS:

    • Payment rates for outpatient hospitals and ambulatory surgical centers (ASCs) would increase by 2.7%.
    • CMS is soliciting comments on adding 4 safety measures to the Outpatient Quality Reporting Program that have already been required of ASCs: patient falls, patient burns, wrong site/side/procedure/implant, and all-cause hospital transfers/admissions.

    A CMS fact sheet on the proposed rule is available online. APTA is analyzing the proposed rule and will provide comments to CMS by the September 27 deadline.

    Proposed DMEPOS Rule From CMS Aimed at Predictability, Clarity

    In its proposed 2020 rule for durable medical equipment, prosthetics, orthotics, and supplies (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. The agency's solution? A "comparable item analysis" system that CMS thinks will help make it easier to nail down exactly what Medicare will pay for those devices.

    In what a CMS fact sheet describes as an attempt to "improve the transparency and predictability of establishing fees for new DMEPOS items," the proposed rule establishes 5 major categories under which providers can compare older DMEPOS with new ones: physical components, mechanical components, electrical components (when applicable), function and intended use, and "additional attributes and features."

    The idea, according to the proposed rule, is that when the old and new items are comparable, CMS will use the fee schedule amounts for the existing older item in determining 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.

    In addition to the comparison system, CMS is also proposing to revamp 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—would 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."

    APTA is analyzing the proposed rule and will provide comments to CMS by the September 27 deadline.

    Proposed Fee Schedule Rule Wrestles With PTA, OTA Services Delivered 'In Part'; Includes Changes to MIPS

    Despite serious questions and criticisms from APTA, the American Occupational Therapy Association (AOTA), and other stakeholders, the US Centers for Medicare and Medicaid Services (CMS) intends to move ahead with its plans to require providers to navigate a complex system intended to identify when therapy services are furnished by a physical therapist assistant (PTA) or occupational therapy assistant (OTA). The approach, which in 2022 would trigger a payment differential depending on how many minutes of services are provided by a PTA or OTA, is included in the proposed 2020 physician fee schedule rule released by CMS on July 29.

    As always, the physician fee schedule (PFS) rule is an extensive document that covers a wide range of providers and settings, with an emphasis on individual provider payment rates. But for the physical therapy profession, the big story for the 2020 proposed rule is related to how CMS plans to require providers to comply with a law requiring identification of services furnished "in whole or in part" by a PTA or OTA. The approach being contemplated by CMS—to set a "de minimis" 10% bar—has been criticized by APTA as one that has "serious implications for beneficiary access to care," particularly in rural and underserved areas.

    The proposed 2020 rule would require the new PTA and OTA modifiers (CQ and CO, respectively) to be included in claims beginning January 1, 2020, with a payment differential implemented in 2022. CMS also proposes to add a requirement that the treatment notes explain, by way of a short phrase or statement, why the modifier was or wasn't used for each service furnished that day. In short, the system is rooted in minutes of service, and would require the use of the applicable modifier that would indicate when a PTA or OTA provided outpatient therapy services for 10% or more of the total time spent furnishing the service.

    And yet, as most physical therapists (PTs) and occupational therapists (OTs) well understand, the provision of therapy services isn't quite that simple. Questions start to pile up fairly quickly: what if the PTA or OTA services are provided concurrently with the PT or OT? What if the PTA or OTA services are administrative or nontherapeutic? What about group therapy? How is time designated when delivering supervised modalities?

    CMS attempts to anticipate these and other potential complications by making a few definitive decisions—for instance, administrative or nontherapeutic services provided by a PTA or OTA that could be provided by others without PTA or OTA education and training don't count—and providing examples of how the time allotments would be calculated in various scenarios.

    Despite the extensive requirements and explanations (and accompanying charts), a CMS fact sheet on the proposed fee schedule states that the system imposes "the minimum amount of burden for those who bill for therapy services while meeting the requirements of the statute."

    APTA disagrees with that assertion, and has voiced additional concerns about how the system would impact patient access to care. While acknowledging that CMS is bound by law to create a PTA modifier, the association takes issue with CMS’ interpretation of “in part,” and asserts that the agency's attempt to quantify what "in part" means is excessively complex, discounts the role of the therapist, and exceeds the intent of the law. That mischaracterization of the law, APTA argues, will quickly lead to confusion and loss of access to care, particularly among beneficiaries in and underserved rural areas.

    APTA plans on continuing its advocacy for a less complex, more patient-friendly system, including lobbying federal legislators to take a closer look at the plan and seeking meetings with CMS. APTA also will provide comments on the PTA/OTA modifier plan and other elements of the proposed fee schedule by the September 27, 2019, deadline, and will create a customizable template letter, available on APTA's Regulatory Action webpage, for individual provider comment.

    Here are other highlights of the proposed rule:

    Payment would increase slightly
    CMS estimates that the 2020 conversion factor would be $36.0896, just about a nickel more than 2019's $36.04.

    MIPS measures and performance thresholds for PTs and OTs would change—and CMS is looking at ways to make things less complex
    The proposed rule would add measures for diabetes mellitus neurological evaluation, diabetes mellitus evaluation of footwear, screening for depression and follow-up plan, falls risk assessment, falls plan of care, elder maltreatment screen and follow-up plan, tobacco use screening and cessation intervention, dementia cognitive assessment, falls screening for future falls risk, and functional status change for patients with neck impairments. The rule also removes 2 measures: pain assessment and follow-up, and functional status change for patients with general orthopedic impairments.

    Additionally, CMS has proposed that MIPS-eligible clinicians with a final score of 45 would receive a neutral payment adjustment, a change that CMS believes will lead to more clinicians receiving positive adjustments than negative ones. The current neutral payment adjustment score is set at 30.

    CMS is also proposing the concept of shifting to a streamlined version of MIPS, which it has dubbed "MIPS Value Pathways," (MVPs) for 2021 and beyond. According to CMS, the MVP system would help providers align activities across the 4 existing MIPS categories by specialties or conditions. MVPs would focus on population health priorities and reduce reporting burden by limiting the number of required specialty- or condition-specific measures so that all clinicians or groups reporting on a clinical area would report the same set or sets of measures. The change would also provide more data and feedback to clinicians, which in turn "helps clinicians quickly identify strengths in performance as well as opportunities for continuous improvement," according to a CMS press release on the proposed rule.

    It's not a "limitation," it's a "threshold amount"
    In a change that adds semantic reinforcement to the end of a hard cap on therapy services established in 2018, the proposed rule clarifies that the dollar amounts assigned to therapy services aren't limitations per se, but "threshold amounts" that, when exceeded, require the KX modifier. In turn, the KX modifier would be regarded as confirmation that the additional services are medically necessary. CMS also says it will clarify regulations on the medical review threshold and the applicable years for the targeted medical review process

    New dry needling codes, and changes to codes and RVUs for biofeedback
    The American Medical Association (AMA) Current Procedural Terminology (CPT) Editorial Panel approved 2 new CPT codes to report dry needling of musculature trigger points in 2020. These codes, with proposed relative value unites (RVUs) of .32 (205X1, needle insertion without injection, 1 or 2 muscles) and .48 (205X2, needle insertion without injection, 3 or more muscles), were surveyed and reviewed by the Health Care Professions Advisory Committee, a group of non-MD/DO health professionals, including a PT representative. Those new codes are included in the proposed PFS.

    Also, in September 2018, the AMA CPT Editorial Panel replaced CPT code 90911 (Biofeedback training, perineal muscles, anorectal or urethral sphincter, including EMG and/or manometry) with 2 new codes to describe biofeedback training initial 15 minutes of 1-on-1 patient contact and each additional 15 minutes of biofeedback training.

    As a follow-up to another CPT editorial panel decision in 2018 that replaced a single CPT biofeedback code with 2 separate codes, CMS is also proposing an RVU of 0.90 for CPT code 908XX (biofeedback training, perineal muscles, anorectal or urethral sphincter, including EMG and/or manometry when performed; initial 15 minutes of one-on-one patient contact) and 0.50 for code 909XX (biofeedback training, perineal muscles, anorectal or urethral sphincter, including EMG and/or manometry when performed; each additional 15 minutes of one-on-one patient contact). The proposed rule also designates the 2 codes as “sometimes therapy” procedures, meaning that an appropriate therapy modifier is always required when this service is furnished.

    Intensive cardiac rehab (ICR) would be expanded
    CMS is proposing that coverage for ICR, which tends to be more structured, rigorous, and integrative in its emphasis on diet and cognitive-behavioral factors, be expanded to beneficiaries with stable chronic heart failure. It's also looking to expand coverage for both ICR and cardiac rehabilitation to other cardiac conditions as identified through a national coverage determination—providing that determination finds clinical support for an expansion.

    CMS is looking for comments on bundled payments
    Can concepts and principles associated with bundled payment models—particularly the idea of per-beneficiary payments for multiple services or condition-specific episodes of care—be applied to the PFS? CMS believes it has the flexibility to implement bundling concepts in future rules, and is looking for public comment on the idea.

    Want to hear more about the proposed fee schedule directly from the APTA experts? Be on the lookout for an upcoming special "Insider Intel" phone-in session exclusively devoted to the PFS in the coming weeks. We'll announce the date and time via PT in Motion News and social media.

    Proposed Home Health Rule Moves Ahead With New Payment System, Allows Therapist Assistants to Furnish Maintenance Therapy

    The US Centers for Medicare and Medicaid Services (CMS) intends to go full steam ahead with its plans to shift to a new payment system for home health beginning in 2020. The plans are accompanied by other changes that include allowing maintenance therapy to be furnished by physical therapist assistants (PTAs) and occupational therapy assistants (OTAs), providing a payment "add on" for rural home health care, and adopting an APTA-supported "notice of admission" requirement to avoid duplicate billing. The new provisions, which include a 1.3% payment increase, are included in CMS’ proposed rule released on July 11.

    The biggest shift has been more than a year in the making: a transition to a new payment system known as the Patient-Driven Groupings Model (PDGM). The PDGM moves care from 60-day to 30-day episodes and eliminates therapy service-use thresholds from case-mix parameters. Instead, the system classifies 30-day care 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. APTA offers extensive information on the new system and will participate in a live August 5 webinar on the model jointly hosted by APTA, CMS, the American Occupational Therapy Association, and the American Speech-Language-Hearing Association. APTA members can participate in this webinar (free to APTA members, login required APTA members can participate in this webinar).

    But that's not all in the proposed rule (.pdf). CMS also plans to allow PTAs and 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 therapist assistant, the qualified therapist still would be responsible for the initial assessment; plan of care; maintenance program development and modifications; and reassessment every 30 days. CMS believes the change would bring home health in line with other care settings and give home health agencies (HHAs) more latitude in how they allocate resources.

    The rule also would phase out the split payment approach that requires HHAs to submit a Request for Anticipated Payment (RAP) at the beginning of the initial episode for 60% of the anticipated final claim payment amount. A final bill for the remaining 40% is submitted at the end of the 60-day episode. RAP submissions are operationally significant, as they establish the beneficiary’s primary HHA by alerting the claims processing system that the beneficiary is under a home health plan of care and home health services are subject to consolidated billing, meaning Medicare makes payment for all home health items and services to the single HHA overseeing the plan of care.

    Instead, CMS proposes requiring HHAs to submit a notice of admission to alert the claims processing arm of CMS that a beneficiary is under a home health episode of care. The new system is a direct result of APTA advocacy, which was fueled by members in private practice settings who shared data with the association to help APTA make its case. The change will be phased in next year and fully implemented in 2021.

    APTA and its members successfully argued that the split percentage approach is fraught with logistical inefficiencies that often result in confusion for CMS and therapy providers in outpatient settings. The proposal to replace the RAP with the notice of admission, to be submitted within 5 days of the start of care, would be needed to establish the primary HHA so the claims processing system would be alerted to a home health period of care, helping to eliminate the possibility of any lag time between a beneficiary's admission in home health and the HHA's notice of the admission to CMS. This too-common delay trips up outpatient providers who begin treatment (and billing) before CMS knows that the beneficiary has transitioned to home health. CMS describes the change as "an important step in paying responsibly and appropriately for home health services," according to an agency fact sheet on the proposed rule.

    As for payment, home health would see an overall 1.3% boost—about $250 million. The increase, initially targeted at 1.5% to comply with the Bipartisan Budget Act of 2018, was decreased by .2% to accommodate a rural add-on policy.

    Among other elements of the proposed rule:

    SPADE requirements are expanding. CMS is continuing its efforts to increase the range of standardized patient assessment data (SPADE) reported by HHAs. The use of SPADE in home health was instituted to bring HHAs up to speed with provisions of the 2014 IMPACT Act, a law that mandated more uniformity in reporting across postacute care settings. The proposed rule would follow through with the expansions, but it also includes requirements for reporting on cognitive function and mental status, comorbidities, and social determinants of health, among other categories. HHAs would be required to report these additional elements beginning in 2022 for admissions and discharges that occur between January 1 and June 30, 2021.

    A pain measure would be discontinued. Partially in response to concerns about the potential for overprescription of opioids, CMS is proposing to remove the Improvement in Pain Interfering with Activity Measure (NQF #0177) from the Home Health Quality Reporting Program (HH QRP) beginning in 2022. Under this proposal, HHAs would no longer be required to submit OASIS Item M1242, "Frequency of Pain Interfering with Patient’s Activity or Movement" for quality reporting purposes beginning in 2021.

    A pain-related question would be deleted from patient surveys. CMS proposes to remove a patient survey question that asks whether the patient and provider talked about pain in the past 2 months. The question, currently in the "Special Care Issues" composite measure, would be dropped beginning July 1, 2020. Similar to the pain measure being proposed for deletion, the survey question is being eliminated due to concerns about the ways it might influence unnecessary drug prescriptions. The changes are consistent with an earlier CMS decision to eliminate pain-related items from hospital patient surveys.

    APTA continues to review the proposed rule and will provide comments to CMS by the September 9 deadline. In the coming weeks, APTA also will post a unique template letter on its Regulatory Take Action webpage for individuals to use to submit their own comments on the proposed rule.