home care & hospice national updatecahsah.org/asp/conferencehandouts/2016/k100.pdf ·...

2016 CAHSAH® Annual Conference & Home Care Expo

1 2016 California Association for Health Services at Home

Home Care & Hospice National Update

William A. Dombi, Esq.

National Association for Home care &

Hospice



PROGRAM FOCUS

•Legislative enactments and proposals affecting home care and hospice•Medicare and Medicaid home care and hospice regulatory developments

•Medicare face-to-face rule litigation update•Status of Medicare/Medicaid payment innovations

•VBP•PAC bundling•CJR pilot

•DoL FLSA Wage and Hour activity in home care

SGR Reform: Impact on Home Care: P.L. 114-10

Physician Medicare payment model replacedSGR -> Value based ReimbursementsEnd to annual “patch”$215 Billion in costs

Offsets ($70 billion)Split contributions from providers and beneficiaries

• 1% rate update in 2018• HH surety bond changes

GainsNo home health copay2 year extension of HH rural add on



Pending Home Care Legislation

Home Health Care Planning Improvement Act of 2015 (allows NPs/PAs to sign home health plans of care.) H.R.1342, S.578Preserve Access to Medicare Rural Home Health Services Act of 2015 (extends the payment increase (add-on) for Medicare home health services in rural areas through 2020.) S.2389Medicare Home Health Flexibility Act of 2015 (allows home health agencies the flexibility to open cases and conduct initial assessments when skilled nursing care is not provided.) S. 2364Home Health Documentation and Program Improvement Act of 2015 (requires CMS to develop a standardized form for beneficiary eligibility; allows a home health agency to complete the form to be reviewed and signed by the referring physician.) S.1650

Pending Home Care Legislation

To amend title XIX of the Social Security Act to require the use of electronic visit verification for personal care services furnished under the Medicaid program, and for other purposes. (requires states to have in place a system for the electronic verification of visits conducted as part of personal care services.) H.R. 2446Ensuring Access to Affordable and Quality Home Care for Seniors and People with Disabilities Act (would preserve the companionship services exemption) H.R. 3860 S. 2221



Pending Hospice Legislation

Palliative Care and Hospice Education and Training Act (would amend the Public Health Service Act to increase the number of permanent faculty in palliative care education programs.) H.R.3119

Care Planning Act (would provide assistance to individuals with serious health conditions by giving them access to more information about potential treatment options and ensuring that the course of treatment they arrive at is consistent with their personal goals, values and preferences.) S. 1549

Medicare Patient Access to Hospice Act of 2015 (would grant Medicare beneficiaries, upon election of hospice care, the right to select their PAs to serve as their attending physicians for purposes of hospice care.) S.1354 H.R.1202

Pending Hospice Legislation

Hospice CARE (Commitment to Accurate and Relevant Encounters) Act (allows hospices to utilize PAs and other appropriate clinicians to perform the required face-to-face encounter, and also provide additional time for hospices to complete the face-to-face encounter when exceptional circumstances occur.) H.R. 2208

Hospice Care Access Improvement Act of 2015 (creates a one-year demonstration program testing a two-tiered payment system for hospice patients receiving routine care based on the length of their stay.) H.R. 3037



Medicare Payment Advisory Commission (MedPAC)

MedPAC Annual March Report to Congress – Most Medicare provider types assessed for payment adequacy

HOME HEALTH:2016 average margin: 8.8% (12.7% in 2012)Access to care, capital OKMargins affected by recent changes but still healthy

RECOMMENDATIONS: NO update in 2017Elimination of therapy utilization as a payment level determinant under HHPPSThe institution of a second round of rate rebasing in 2018

National Association for Home & Hospice Care 2016

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MedPAC

HOSPICECare access, availability of providers, access to capital are all adequateMargins for 2016 estimated at 7.7% (excl bereavement, volunteer services)Live discharge rate dropped 1.2% between 2013 and 2014RECOMMENDATIONS:NO UPDATE for FY2017Reprint payment reform and medical review recommendationReprint MA/hospice recommendationAnticipate future discussion of hospice in nursing facilities


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President’s FY2017 Budget

NEW ITEMS:Hospice:

1.7 ppt update reduction in each of 2018, 2019, and 2020Create a hospice-specific market basket indexOther “budget neutral” policy changes

CMPs for failure to update enrollment recordsMedicaid Expansion states – 3 yrs. At 100% match for new eligiblesPrior authorization for Medicare FFS items and servicesREPEATS:1.1 ppt cut in updates for HH, other PAC providers in 2017 and 2019 through 2026HH copayments for new patients -- $100 per episode beginning in 2020PAC bundled payments and VB purchasing“User Fees” for resurveys; exploring “risk-based” approach to surveying


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MEDICAID HOME CARERebalancing of LTC spending continues

Just less than 50% of Medicaid LTC spending now in home careStates’ balance in spending wide ranging

ACA incents home careHigher federal match to low balance states (BIP)New HCBS option benefit

https://www.federalregister.gov/articles/2014/01/16/2014-00487/medicaid-program-state-plan-home-and-community-based-services-5-year-period-for-waivers-provider

States increasing Medicaid home care audits and oversightBig focus on caregiver qualifications by OIGDocumentation weaknesses on care plans ad authorizations

Major movement to managed care MedicaidProposed Rule on Managed Medicaid

MLTSS (Managed Long Term Services and Supports)Duals Demonstration Programs



Medicaid HH Face‐to‐Face

Final rule issued: February 2, 2016, Eff. July 1, 2016https://www.gpo.gov/fdsys/pkg/FR-2016-02-02/pdf/2016-01585.pdf

F2F for initial ordering of HH services:Ordering physician must document the occurrence of a F2F encounterClinical findings must show that encounter related to home health services orderF2F may be performed by physician or authorized NPPPhysician still must order HH servicesF2F occurs no earlier than 90 days prior/no later than 30 days after SOCMay use telehealth (not phone)As much as 2 year delay if state legislative action needed


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Medicaid HH Face‐to‐Face

Also clarifies –• Coverage of HH services cannot be

contingent on need for nursing or therapy services

• Medicaid HH not subject to “homebound” requirement

HH services may NOT be limited to services furnished in the home:

• Can be in any setting where normal life activities take place

• NOT where payment could be made under Medicaid for inpatient services/R & B


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Medicaid Rules with Indirect Impact

Methods for Assuring Access to Covered Medicaid Services

https://www.federalregister.gov/articles/2015/11/02

Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions Related to Third Party Liability

https://www.federalregister.gov/articles/2015/06/01/2015-12965/medicaid-and-childrens-health-insurance-program-chip-programs-medicaid-managed-care-chip-delivered

MEDICARE Home Health Regulatory Developments

HHPPS 2016 final rule

Rates

Value-Based Purchasing pilot

Face to Face rule/lawsuit

Program Integrity/Claims Reviews

Star Rating System



The 2016 Medicare Home Health Rule

https://www.federalregister.gov/articles/2015/11/05/2015-27931/medicare-and-medicaid-programs-cy-2016-home-health-prospective-payment-system-rate-update-home

Home Health Rule: So much more that payment rates

HHPPS 2016 Payment RatesContinued Rate Rebasing

Recalibration of Case Mix Weights (again)

Wage Index Changes

Outlier Payment Model

Case Mix Creep Adjustments (again!)

Value Based Purchasing Model



2016 Medicare Home Health Rates

Payment rate updatesMarket basket Index (inflation factor): 2.3%Productivity Adjustment: 0.4

Case mix creep adjustment: 0.97% (2016, 2017, and 2018)Rebasing + updates + adjustment =

Reduction in spending of $260 million in 2016

HHPPS Industry Concerns with Final Rule

Case Mix Creep adjustment

Relies on out of date data on “nominal” case mix changes

No increase in spending

Case mix weights recalibrated

Industry cannot survive further rate reductions

What can be expected with 2017 HHPPS rule?



HHPPS Rebasing: The Future

CMS unlikely to change pathCongressional efforts underway, but limited

–Delay and replace–Repeal and replace with Value Based Purchasing–Study

Impact of rebasing mixed–Margins down, but less than forecast–New HHAs in market–Consolidation/Acquisitions shows market promise –Limited access concerns surfacing

MedPAC recommending deeper rate cuts

Value-Based Purchasing Pilot (VBP)

•CMS pilots a VBP:–Starting in 2016

• Baseline year 2015• Performance year 2016• Payment year 2018

–9 states mandatory participation of all HHAs (NC included)–3-8% payment withhold for incentive payments

• “greater upside benefit and downside risk”• Phase-in to 8%

–performance measures• Achievement and improvement• Process, outcomes, and patient satisfaction

–Comparison based on “smaller-volume” and “larger-volume”

• State-based comparison



Value-Based Purchasing

Congressional proposal introduced in July (W&M sponsors)

–Substitute for SGR legislative cuts–Integrated PAC VBP rather than individualized sectors–Starting in FFY 2020–Geographic based measures based solely on PAC spending–Withhold range at 3-8% with 50-70% redistribution–Limited direction on performance measures

– PAC sector-specific per beneficiary spending(dangerous)–Significant discretion given CMS

Home health non-PAC: in or out???MedPAC supports hospital readmission penalties

Value-Based Purchasing Pilot: Industry Concerns

Generally supportive of VBP as a payment model reform

Details matter!Details here raise concerns

Amount at risk• 2% is max in other sectors• At risk levels may prevent improvements as resources

depletedMeasures are complex, subject to manipulation, and leave out patient stabilization

• Do not reflect population served in home healthWill overlap with bundling, ACOs, and other innovationsNo benchmarks until AprilBenchmarks based on all patients with OASIS, not just Medicare FFS



2015-16 Face-to- Face Physician Encounter Changes: 42 CFR 424.22

•Effective 1/1/15•Eliminates physician narrative requirement•Requires certifying physician to have sufficient records to support certification•Rejects physician payment claims for certification/recertification when home health claim denied for noncompliant certification/recertification

•CMS began nationwide prepayment “probe and educate” on 10/1/15 (5 claims from each HHA)•Limited pre-2015 claims review on F2F currently

•CR 9189; 9240 -- https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2015-Transmittals.html

•

Face-to- Face Physician Encounter Changes

Physician documentationPhysician required to provide HHA with such

documentation if HH claim auditedHHA can supply certifying physician with its

documentation• Must show that physician reviewed and signed off on it• Corroborates physician documents

CMS expects certification at the start of care or a soon as possible thereafter

• No formal rule standard on exact timing• Expects prior to end of episode

Significant confusion on how to administer and comply with the requirementCMS proposes electronic documentation template



Face-to-Face Audits

All HHAs will have 5 claims auditedHHAs with high denial rate will have a second roundMAC education of HHAsEarly indications of excessive denial rate

Physician records insufficientNo reply to ADR

Advocacy effortsCongressCMSCourt

Recertification Longstanding rule with new interpretation: 42 CFR 424.22(b)(2)“The recertification statement must indicate the continuing need for services and estimate how much longer the services will be required. Need for occupational therapy may be the basis for continuing services that were initiated because the individual needed skilled nursing care or physical therapy or speech therapy. “Must be part of the recertification

included in the recertification statement separate statement where it is clear that it is part of the recertification

• I certify that in my in my estimation services will be

require for ………………..• Agency may complete based on the physician

estimate



CMS Home Health Star Rating System

Combines outcome measures and process measures from Home Health Care Compare into a single scorehttps://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-instruments/HomeHealthQualityInits/HHQIHomeHealthStarRatings.html

• Process measures: • Timely Initiation of Care • Drug Education on all Medications Provided to Patient/Caregiver • Influenza Immunization Received for Current Flu Season

• Outcome measures: • Improvement in Ambulation • Improvement in Bed Transferring • Improvement in Bathing • Improvement in Pain Interfering With Activity • Improvement in Shortness of Breath • Acute Care Hospitalization

• HHCAHPS Star Rating January 2016 (separate system)

Star Rating Concerns

Focus on Improvement measures

Formula pushes scores to the middle

Most HHAs with 3 Stars

Consumer impression that 3 Stars is mediocre

Patient experience (HHCAHPS) Star rating a different model

More traditional design

Consumer familiarity with model



Payment Reforms: PAC Bundling

CMMI pilots/demos continuing2100 participating providers in 360 demo agreements–Limited home health participation; virtually no risk taking–Evidence of impact still unavailable–ACO experience shows some home health gains in use

Administration support for expanded PAC bundlingCongressional caution

–BACPAC bill• Limited support• Industry concerns

CMS Joint Replacement Bundling

Affects total hip and knee replacement patients (April 1, 2016)

Hospital payments at risk

Target spending set by CMS geographic specific data

Hospitals may share risk and savings with other providers

First year: shared savings only

Year 2 and beyond: shared savings and losses

Covers costs through 90 days post hospital

67 hospital geographic areas in play

Patient freedom of choice continues

Providers paid at usual FFS rates

Expansion/retraction/termination possible depending on results

Home health impact: mixed, but mostly positive in the aggregatehttps://www.federalregister.gov/articles/2015/07/14/2015-17190/medicare-program-comprehensive-care-for-joint-replacement-payment-model-for-acute-care-hospitals



HH Prior Authorization Demo

Three-year, five-state demonstration; start in Florida, Texas, Illinois; second phase: Michigan, Massachusetts Develop methods to identify, investigate and prosecute fraudCERT contractors identify 51.4% improper payment rateMAC review for PA

If submitted for PA and approved, claim paidIf submitted for PA and denied, denied (may appeal)If no PA submission but claim submitted and approved, 25% reduction in payment

https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing-Items/CMS-10599.html?DLPage=1&DLEntries=10&DLSort=1&DLSortDir=descendingAdvocacy Efforts are intense


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Hospice Regulatory Developments

New Payment Model



FY2016 Hospice Rule Payment Reform

WHAT HAPPENED TO A TIERED MODEL?

CMS: Additional payments at end of life should be contingent on the provision of services

CMS operational issues: tiered payment requires major systems changes, claim reprocessing due to sequential billing rules


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FY2016 Hospice RulePayment Reform

Beginning Jan. 1, 2016:

Two‐tiered payment system for RHC

Days 1 – 60 of “episode” ‐‐ $186.84

Days 61 and thereafter of “episode” ‐‐ $146.83

“Episode” – a hospice election period or series of election periods separated by no more than a 60‐day gap


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SERVICE INTENSITY ADD-ON (SIA)Beginning with services provided on/after January 1, 2016

Add-on payment for RN or SW visitsUp to 4 hours per day (15-minute

increments)Paid at CHC hourly rate ($39.37)

NOT applicable to visits for pronouncement, Post Mortem (PM) visits


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Criteria for SIA• The day is billed as RHC• The day occurs during the last 7 days of life• Beneficiary is discharged dead• Direct patient care – must be a visit -

provided by RN or SWCR 9369/New “G” Codes to distinguish hospice/home health RN (G0299) vs. LPN (G0300): https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2015-Transmittals-Items/R3378CP.html?DLPage=1&DLEntries=10&DLSort=1&DLSortDir=descending


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FY2016 Hospice RulePayment Rates

FINAL FY2016 PAYMENT RATES:

Average impact on payments of 1.1 percent

Portion of payment must be adjusted by wage index

Payment rates do NOT reflect impact of sequester

Hospices failing to meet quality reporting requirements subject to a one‐time 2 percentage point payment reduction


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FY2016 Hospice Rule ‐‐ CAP Issues

CMS MAY CONSIDER FUTURE CHANGES (legislation required):

Adjust aggregate CAP by wage index

Rebase aggregate CAP

Use cost report data to establish average episode cost for use as CAP value


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HOSPICE PEPPERMid‐April 2016

TARGET AREAS• Live Discharges/No

Longer Terminally Ill (excludes transfer, revocation, discharge for cause, move out of service area)

• Live Discharges/ Revocations (NEW)

• Live Discharges/LOS 61-179 days (NEW)

• Long Length of Stay (greater than 180 days)

• CHC in ALF

• RHC in ALF

• RHC in NF

• RHC in SNF

• Claims with Single Dx Code (NEW)

• No GIP or CHC (NEW)


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Medicare‐Medicaid Overpayment Rule

•ACA Section 1128J(d) -- report and return Medicare overpayment by the later of:

• Within 60 days of identification

• By date any corresponding cost report is due

•Final Rule published Feb. 12, 2016 with effective date of March 14, 2016


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Overpayment Rule

Impact on Home Health Outlier Cap, RAPs, and Hospice

CAP – HHAs and hospices don’t know cap overpayment status until notified by MACCMS: Hospice/home health cap determinations are made at the end of the year and…provider may not be aware of the cap status until their MAC calculates the final cap amount. Therefore, the provider is not responsible to report and refund the overpayment until they have received the cap determination from their MAC. There can be no applicable reconciliation until the final cap amount is determined.


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FLSA-DoL

A stakeholder growing in impactRule changes directly targeting home care

“companionship services” exemptionLive-in domestic services

Policy positions informed through home care

Joint employerIndependent contractor



Minimum Wage and Overtime:

COMPANIONSHIP SERVICES/LIVE-IN FLSA EXEMPTIONS

•DoL rule effectively eliminates minimum wage and overtime exemption

– Eliminates exemption for 3rd party employment– Changes definition of companionship services– Excludes 3rd party employers from live-in

exemption– Medicaid and disability rights advocates

opposition– Primary impact is on Medicaid and private pay

services

IMPACT

DoL sees limited impact–Transfer of dollars from employer/payer at $232M annually

Industry sees greater impact–Increased staff recruiting–Higher staff turnover–Shift to part-time workers–Limited Medicaid rate support–Lower customer satisfaction



Litigation Update

Appeal to U.S. Supreme Court

Stay denied

Petition for Certiorari in process

• 2/24 DoL response due

• 3/9 Reply due

Expect Cert Petition ruling in May or June

If cert granted, argument will be in October 2016 term

Fallout Forecast

Post-lawsuit forecastPrivate parties sue state Medicaid programs, MCOs, and

home care companies to enforce rulesIndustry retrenches to limit worker hours and establish

new delivery modelsTurnover increasesClient satisfaction diminishesHome care company costs increaseClient costs increase with some reducing care levelsCMS pushes states to fund overtime

Ensuring Access to Affordable and Quality Home Care for Seniors and People with Disabilities Act (would reinstate the companionship services and live-in exemptions) H.R. 3860 S. 2221



CONCLUSION

Moderately stable times

Opportunities for innovation

Challenges remain in regulatory proposals/changes

Quality remains high, but standards and oversight on the increase

Manage today, plan for the future!



Speaker Information

William A. Dombi, Esq.

Vice President for Law

National Association for Home Care & Hospice

228 7th St SE, Washington, DC 20003

202-547-7424

202-547-7382

[email protected]

www.nahc.org

May 10-12, 2016 CAHSAH 50th Anniversary Annual Conference 51

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