CMA Comments on CY 2022 HH Prospective Payment System & More

August 5, 2021

Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-1747-P
P.O. Box 8013
Baltimore, Maryland  21244-8013

Submitted electronically to: http://www.regulations.gov

Re:  File Code CMS-1747-P; Federal Register, Volume 86, No. 127 (July 7, 2021)

Medicare and Medicaid Programs; CY 2022 Home Health Prospective Payment System Rate Update; Home Health Value Based Purchasing Model Requirements and Proposed Model Expansion; Home Health Quality Reporting Requirements; Home Infusion Therapy Service Requirements; Survey and Enforcement Requirements for Hospice Programs; Medicare Provider Enrollment Requirements; Inpatient Rehabilitation Facility Quality Reporting Program Requirements; and Long-Term Care Hospital Quality Reporting Program Requirements – Proposed Rule

The Center for Medicare Advocacy (the Center) provides these comments regarding CMS-174-P and the impact of the proposed rule on access to home health care for vulnerable older and disabled people.

The Center for Medicare Advocacy is a national, non-profit law organization that works to ensure access to Medicare, health equity, and quality healthcare. The organization provides education, legal assistance, research and analysis on behalf of older people and people with disabilities, particularly those with long-term conditions. The Center’s policy positions are based on its experience assisting thousands of individuals and their families with Medicare coverage and appeal issues. Additionally, the Center provides individual legal representation and, when necessary, challenges patterns and practices that inappropriately deny access to Medicare and necessary care. The Center also participates on Technical Expert Panels to discuss issues related to the impact of the Patient Driven Groupings Model (PDGM), which serves as the new reimbursement system for home health agency providers, and the Unified Payment System, a potential future payment model.

The Medicare home health statute is not a complicated or ill-defined law.[1] Briefly stated, to qualify for home health care, a Medicare beneficiary must be “homebound” and in need of intermittent or part-time skilled services of a registered nurse and/or the skills of a therapist. Once that care is in place, a beneficiary may qualify for medically necessary social work services and home health aide personal care services (up to 35 hours a week of aides combined with RN hours).

The Medicare Act authorizes access to coverage for an array of home health services to help individuals stay healthy and safe at home. Beneficiaries who qualify for the Medicare home health benefit have: 1) no limit on the duration of time an individual can qualify for home health coverage; 2 ) no prior-institutional stay requirement or limit on the number of covered visits (both repealed in 1980); and, 3) no cost-sharing in traditional Medicare.

The following comments to the proposed rule address: Access to Coverage and Care, Home Health Aide Services, Expansion of HHVBP, Quality Reporting, PDGM and Frequently Heard Access Issues Brought to Our Attention by Patients and Home Health Agencies.

1. Patients Have Limited Access to Home Health – Agencies Pick and Choose Patients to the Detriment of Those with Longer-Term, Chronic Conditions.

Regrettably, many beneficiaries are denied access to necessary home care for which they qualify under the law. The Medicare Payment Advisory Commission’s (MedPAC) 2021 report to Congress, MedPAC’s analysis of “adequate access” is simply stated as follows:

Over 99 percent of beneficiaries lived in a ZIP code where at least one Medicare HHA operated in 2019, and 86 percent lived in a ZIP code with five or more HHAs.[2]

While this may be a statistically accurate statement regarding the existence of Medicare-certified agencies, beneficiaries’ actual access to home health services from agencies is significantly more limited. In practice, access is denied to many beneficiaries who qualify for home health care, especially those with longer-term, chronic conditions, because agencies lack operational incentives to serve them. Home health agencies pick and choose more profitable patients, without any apparent oversight from CMS as to whether the agencies’ admission practices discriminate against or exclude eligible beneficiaries with chronic conditions. Simultaneously, Medicare margins for “Relatively Efficient Providers” soared to 23.4% in 2019[3]. Further, despite Conditions of Participation rules to the contrary, the Center hears on a regular basis that many agencies discharge patients at-will, while agencies are often able to keep an entire bundled PDGM payment for ordered services that are not actually delivered.

• Agencies No Longer Deliver the Amount and Scope of Medicare-Covered Home Health Aide Services that Beneficiaries Reasonably Require, But Covered Aide Services Should Be Available to Beneficiaries under Medicare Law.

The Center appreciates CMS’s concerns stated in the proposed rule about the drastic decline in delivery of necessary home health aide services. As the proposed rule states, “home health aides deliver a significant portion of direct home health care. Ensuring that aide services are meeting the patient’s needs is a critical part in maintaining safe, quality care” (FR 35956, 35958). The Center strongly agrees that aides are needed and should deliver a significant portion of direct home health care. For years, the Center has monitored, researched, surveyed agencies, and assisted patients trying to locate appropriate levels of covered home health aides. The availability of necessary aide services, however, has grown alarmingly scarce.

As noted in the proposed rule, between 1998 and 2017 home health aide visits declined 88% (FR 35958), despite no such change in Medicare coverage law. Although the law allows for up to 28-35 hours a week of necessary home health aide services, for a robust list of personal care related-services, most beneficiaries who would qualify for that level of service, are “lucky” to receive a bath every week or two. In the Center’s experience, agencies are increasingly not staffing for home health aides (current COVID-related circumstances aside), and are instead referring patients to their non-Medicare, private pay “affiliates” for related services, or cost-shifting home health aides for dually-eligible Medicare/Medicaid patients to Medicaid, or, in the case of many Medicare Advantage plans, simply not allowing home health aide services to be delivered. For example, we recently worked with one hospital-affiliated home health agency that had one home health aide for 600 cases. This lack of access to Medicare-covered home health aides, for services as critical as bathing, toileting, grooming, skin care, walking, transferring, assistance with self-administered medications, and other activities of daily living, puts beneficiaries at risk of entering an institutional setting, either via hospitalization to address falls, infections, and other preventable conditions, or by entering nursing homes in order to receive the services they cannot get at home.

Over the past twenty years, Medicare home health coverage has changed from the Congressionally intended benefit, as is still written in law, to a narrowly construed, short-term, post-acute skilled service benefit lacking many of the critical covered services that should be provided by home health aides. This reduction in home health aide services has been driven by administrative rules, policies, and guidance through the Prospective Payment System (PPS), the Patient Driven Groupings Model (PDGM), Home Health Value Based Purchasing (HHVBP), Quality Reporting Measures (QRM), Medicare Administrative Contractor (MAC) decisions, and Office of Inspector General (OIG) audits. Patients who try to get home health aide services are constantly told by agencies that, “Medicare doesn’t pay for home health aides.” Based on short-comings in the PPS system, agencies apparently find little-to-no payment incentives to provide aide services.

Currently, the home health aide services available to beneficiaries amount to an occasional bath. Sometimes patients are asked to choose between receiving a bath by an occupational therapist assistant or therapy, as we have heard from beneficiaries in various regions of the country. As annual payment “re-basing” occurs, service delivery data shows increasingly less home health aide services have been provided. This reduction in services is then reflected in payment rates, creating cycle of reduced payment and reduced care. However, PPS was designed to be an aggregate bundled payment system. It is intended to provide adequate payment to meet the needs of all qualified patients, not for agencies to maximize profits on each beneficiary. After decades of PPS data-collection, however, it has become clear that the data represents services that agencies decide to provide, based strongly on profit incentives, not on the services that patients need. The result is a huge chasm between the services home health law covers and the services home health agencies deliver. This is particularly true for patients with longer-term, chronic conditions who most need the services of a home health aide to remain at home.

Many beneficiaries have suffered needless neglect and poor quality of care in recent years because home health aide services have been allowed to almost disappear. Fortunately, this was not the case for Glenda Jimmo a decade ago. (Mrs. Jimmo was the lead plaintiff in the Jimmo v. Sebelius case settled by the Center, as lead counsel, and the Department of Justice on behalf of HHS[4]. The Jimmo case confirmed Medicare determinations should turn on the need for skilled care, not on an individual’s ability to improve.) Mrs. Jimmo, who had brittle diabetes, was legally blind, and had an amputated leg, received necessary skilled services and home health aides for her personal care needs, allowing her to stay home for years, with quality care. Under current policies and practices, if Mrs. Jimmo was alive today, it is unlikely she would be able to receive adequate Medicare-covered home health aide services to remain at home.

The Center has studied and written about access problems related to the lack of adequate Medicare-covered home health aide services. We encourage CMS to review our recent publications (see links at the top of the next page) containing details about the difficulties caused by the lack of access to necessary home health aide services and to act with urgency to correct this wrong. CMS should ensure that agencies serve beneficiaries who may require Medicare-covered home health aide services up to the statutorily defined limit of 28-35 hours a week, and that agencies actually provide necessary care.[5]

https://medicareadvocacy.org/shrinking-medicare-home-health-coverage-its-time-to-act/; https://medicareadvocacy.org/issue-brief-medicare-home-health-coverage-reality-conflicts-with-the-law/;https://medicareadvocacy.org/wp-content/uploads/2021/07/CMA-HH-Fact-Sheet-7-2021.pdf

• Home Health Value Based Purchasing (HHVBP) Should Be Suspended, Not Expanded

HHVBP criteria focus almost exclusively on improvement in patient function and promote agency competition that results in potential rewards or penalties for providers, up to +/- 5% (FR 35920). As the Center has stated continuously, since HHVBP was first proposed in 2015, the criteria used to measure HHVBP blatantly discriminate against Medicare beneficiaries with longer-term, chronic conditions who require skilled care but are not expected to improve – patients covered by the Jimmo class action settlement (“Jimmo”). CMS has failed to secure meaningful measures in HHVBP for individuals who do not improve, but who need services to maintain their conditions or to slow decline. Instead, HHVBP measures penalize home health agencies when patient improvement is not achieved. Expanding HHVBP will continue and exacerbate the devastating loss of access to necessary home health care that Jimmo beneficiaries have experienced.

Section 1115A(c) of the Social Security Act provides the Secretary with the authority to expand the duration and scope of a model as long as three criteria are met. One of those criteria is for the Secretary to determine that the expansion would not deny or limit the coverage or provision of benefits (FR page 35916). In the proposed rule, CMS determined that “the HHVBP model did not make any changes to coverage or provision of benefits for Medicare beneficiaries. Therefore, the Secretary has determined that expansion of the HHVBP Model would not deny or limit the coverage or provision of Medicare benefits for Medicare beneficiaries” (FR 35917). This is untrue, as access is, and will be, impacted. The HHVBP model has devastated delivery of home care to people who are not expected to improve and expansion of HHVBP will exponentially worsen the problem.[6]

As CMS notes in the proposed rule, “the distribution of payment adjustments would be based on quality performance as measured by both achievement and improvement, across a proposed set of quality measures conducted to minimize burden as much as possible and improve care.” (FR 35917) “Minimizing burden” to providers, in the context of HHVBP, means having them meet quality standards exclusively for people whose conditions are expected to improve. This comes at the expense of denying access to beneficiaries who require Medicare-covered services to maintain their condition or slow decline, as mandated by the Jimmo Settlement.

1. An Example of Patients Who Would Be Harmed by Expanded HHVBP

Mrs. J, one of the Center’s current home health clients, is representative of countless beneficiaries who find devastating obstacles accessing and keeping necessary home health care (literally “countless”, because CMS does not track patients who are denied access to Medicare and care by home health agencies). Mrs. J does not want us to reveal her name, for fear of retaliation.

Mrs. J is age 56 and has advanced multiple sclerosis. Among other services, Mrs. J needs in-home biweekly catheter changes by a registered nurse, skilled therapy to prevent painful contractures, and aide services to help her transfer, bathe, dress, receive nail care, eat, take medications, and perform other activities of daily living that are covered by the Medicare aide benefit. Recently, at a hearing regarding termination of home health services, a Medicare Administrative Law Judge fully affirmed that Mrs. J’s necessary home health services are covered by Medicare, including skilled and unskilled services. Mrs. J has received services from three different home health agencies in just the first six months of this year. Each agency has discharged her after a few months, citing lack of Medicare coverage. She has new home health staff cycling through her home constantly.

As a result of existing CMS rules and policies, and if HHVBP is expanded, Mrs. J will quickly exhaust access to the dozen or so Medicare-certified home health agencies that provide services in her zip code. As it is, home health agencies will currently offer only minimal services—nothing close to what she qualifies for or what is ordered by her doctors. Appeals are useless; even with a fully favorable hearing decision from an Administrative Law Judge, confirming her discharge from home health services was inappropriate. The judge was powerless to order the home health agency to reinstate her services. And while having a fully favorable decision should reassure other agencies that Medicare will cover Mrs. J, instead, her multiple sclerosis renders her a disfavored type of patient to home health agencies.

To a home health agency, Mrs. J represents: loss of profit, a target for Medicare contractors’ (erroneous) unfavorable coverage decisions and OIG audits, the cause of low-quality star ratings, and, if HHVBP is expanded, potential penalties for serving her; all this largely based on her inability to improve. She is a brave advocate for herself and others, but a pariah to Medicare-certified home health agencies. Mrs. J’s experiences with home health agencies have caused her significant stress, exacerbating her symptoms, and leaving her completely demoralized, at age 56, about her future ability to remain at home.

Based on HHVBP criteria, outlined below, patients like Mrs. J will be rejected by Medicare-certified home health agencies, or receive only limited services for a brief period, as agencies rush to discharge her. Patients who can improve, and benefit from the short-term use of home health coverage, are going to produce positive results for agencies, resulting in payment incentives. Not only do agencies receive more payment for people who improve, they are penalized for providing care to people with longer-term, chronic conditions who do not improve. We ask CMS to think about how care for patients like Mrs. J would fare under the HHVBP criteria, described below.

• HHVBP Measures/Criteria Incentivize Serving Beneficiaries Whose Conditions and Functioning Can Improve, to the Exclusion of Those Who Cannot.

Addressing HHVBP criteria, CMS states that “a key consideration behind this approach is to use measures that are readily available…a central driver of the proposed applicable  measure set is to have a broad, high impact on care delivery and support priorities to improve health outcomes, quality, safety, efficiency, and experience of care for patients”, and “newly developed measures [will be studied and incorporated] over time” (FR 35921).

Since 2015, six years of CMS promising to consider new measures for Jimmo beneficiaries, (people with longer-term chronic conditions who need skilled services but are not expected to improve), there has been no progress toward producing such measures in HHVBP. CMS’s answer is the same each year, as stated in the latest proposed rule, “we do not believe [stabilization measures] would allow for meaningful comparisons between competing-HHAs on the quality of care delivered” (FR 35927). CMS offers nothing further to describe how care for people who need services to maintain or slow decline, critical “stabilization measures,” will ever be incorporated into HHVBP.

Thus, Jimmo beneficiaries, people who need such services, are a liability to home health agencies in a competitive HHVBP program that only values improvement. The reality of CMS’s policies and practices for Jimmo beneficiaries who qualify for home health care is that it means they are not worthy of being included in profit-determining measurements, they are not worthy of coverage, they are not worthy of care, and they will not get  meaningful Medicare-covered home health care.

The proposed measure sets for HHVBP (creating incentives for achievement or improvement, and penalties if the patient does not improve or worsens) are as follows:

OASIS-Based:

• Improvement in Dyspnea
• Discharged to the Community
• Improvement in Management of Oral Medications
• Total Normalized Composite Change in Mobility (change in mobility functioning) for:
  • Toilet transferring
  • Bed transferring
  • Ambulation/locomotion
• Total Normalized Composite Change in Self-Care (change in self-care functioning) for:
• Grooming
• Bathing
• Upper and lower body dressing
• Toilet hygiene
• Eating

Claims-Based:

• Acute Care Hospitalization During the First 60 Days of Home Health
• Emergency Department Use Without Hospitalization During the First 60 Days of Home Health

Home Health Consumer Assessment Healthcare Providers and Systems

(HHCAHPS) Survey-Based, addressing:

• Care of patients
• Communications between Providers and Patients
• Specific Care Issues/Team Discussion

Each of the proposed HHVBP measure sets are antithetical to the needs of Jimmo beneficiaries – certainly the more obvious measures requiring “improvement” in condition or function, but also other measures. Someone like Mrs. J, with a longer-term, chronic condition, needing continuous care to prevent or slow deterioration of her multiple sclerosis, would not be expected to be “discharged to the community”.  Further, people with longer-term, chronic conditions statistically have a higher risk for hospitalization or emergency room use[7], making Mrs. J a “riskier” home health agency admission under HHVBP.

With regard to the HHCAHPS survey measure set, criteria include questions to patients such as, “Did you have any problems with the care you got through this agency?” These types of questions are often met with frustration by patients like Mrs. J who are not provided the care they need or qualify for, making survey results almost pre-destined to be unfavorable. In fact, most discharge plans are initiated upon admission to home health care so patients who need services for a longer-term begin care dissatisfied with the agency for pre-planning to discharge them.

These measure sets are discouraging to patients with Alzheimer’s, ALS, COPD, CP, MS, paralysis, post-stroke, and to many other beneficiaries with longer-term, chronic conditions who qualify for home health care but who are turned away by agencies for the Medicare-covered care they qualify for and need. Again, the HHVBP measure sets discriminate against Jimmo beneficiaries and deny them access to home health services.     

• CMS’s Proposed Self-Care and Mobility Measures are Not Appropriate or Adequate for Beneficiaries Who Are Not Able to Improve

CMS states that improvement in self-care and mobility “may allow beneficiaries to remain in the home setting (versus an institution) and contribute to beneficiaries’ quality of life” (FR 35927). There is no doubt that beneficiaries who are capable of improving in self-care and mobility should maximize that opportunity. But CMS should never prioritize patients, through HHVBP or other means, at the expense of care for patients who will not be able to perform self-care or become mobile.

In the current proposed rule, CMS describes self-care and mobility HHVBP measures in a way that attempts to include Jimmo beneficiaries. CMS states, “We acknowledge that skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition. However, we believe that the two proposed TNC [Total Normalized Composite] measures represent a new direction in how quality of patient care is measured in home health as patients who receive care from an HHA may have functional limitations and may be at risk for further decline in function because of limited mobility and ambulation” (FR 35927).

It is unclear to the Center what CMS means by “a new direction”, but CMS also states that “the methodology for these [self-care and mobility] measures take into account patients who may not have goals for improvement…[the] measure computes the magnitude of change…based on a normalized amount of possible change” (FR 35927).

An analysis of the self-care and mobility measures, however, shows that it is nonsensical for CMS to claim that self-care and mobility improvement measures would allow agencies to benefit from providing care to Jimmo beneficiaries who are not expected to improve, or to agencies that serve them, regardless of how high the quality of care is. The two TNC measure set criteria CMS has proposed are as follows:

• Total Normalized Composite (TNC – meaning scores are averaged together) Self-Care – 6 Outcomes:
  • Improvement in Grooming
  • Improvement in Upper Body Dressing
  • Improvement in Lower Body Dressing
  • Improvement in Bathing
  • Improvement in Toileting
  • Improvement in Eating

• Total Normalized Composite TNC Mobility – 3 Outcomes:
  • Improvement in Toilet Transferring
  • Improvement in Bed Transferring
  • Improvement in Ambulation/Locomotion

Self-care and mobility “outcomes” are communicated to home health agencies as “improvement” criteria. It simply does not matter how many of these 9 outcomes are averaged together, Mrs. J, and others like her, who cannot improve in these regards, will not be able to improve in any of these categories. Her magnitude of change will be zero.

In other documents describing the criteria, CMS’ publication Resource: Computing the HHVBP Composite Measures[8], states “[TNC Self-Care and TNC Mobility] capture the magnitude of change (not just improvement) in multiple OASIS items. Therefore, they reward efforts to improve patients who are less independent at the start or resumption of care, as these patients have a greater opportunity for higher TNC measure scores. Normalization accounts for the variation in the number of response options on the applicable OASIS for each TNC measure…. If the patient worsens, the episode will earn a negative change score.” CMS concludes, “the two composite measures report a risk-adjusted normalized (and averaged) amount of change that the agency helps its patients achieve in self-care and mobility. The goal is for the agency to maximize the total amount of change they help their patients achieve.”[9] CMS subsequently held a “learning event” about these composite measures on March 14, 2019, entitled Strategies to Improve Patient Function: New Self-Care and Mobility Measures.[10]

These publications, and CMS’s approach to communicating with home health agencies, do not appear to represent “a new direction” that adequately includes Jimmo beneficiaries in HHVBP. The CMS analysis on self-care and mobility measures appears to demonstrate a lack of understanding about Jimmo beneficiary care needs, and a lack of effort to meaningfully include them in the HHVBP conversation.

• Competition in HHVBP disfavors Jimmo beneficiaries who have longer-term, chronic conditions, and the agencies that serve them.

• Regardless of whether the competition among agencies is within a state, territory, or other defined cohort, there is no incentive in this program to admit patients to necessary home health care unless they are expected to improve. Medicare beneficiaries living with longer-term and chronic conditions are disfavored patients under HHVBP due to penalties agencies may accrue, and the potential rewards they will sacrifice, by serving them.

• CMS states, “Competing HHAs that do not perform as well as others in the same volume-based cohort might have their HH PPS claims final payment amount reduced and those competing HHAs that perform similarly to others in the same volume-based cohort might have no payment adjustment. This operational concept is similar in practice to what is used in the Hospital Value-Based Purchasing (HVBP) Program” (76 FR 26531). The difference in this comparison, however, is that hospitals are required to take patients, whereas home health agencies can pick-and-choose the patients they wish to serve.

• It would be a mistake for CMS to assume that the behavior of home health agencies, to shun Jimmo beneficiaries under expanded HHVBP, may not be impacted due to a relatively small number of patients who are not expected to improve, versus the majority of patients who can achieve improvement. It cannot be expected that agencies would choose to serve Jimmo patients, based on a theory that the number of Jimmo patients logged by an agency might not statistically impact the competitive reward-penalty system imposed by HHVBP. It is likely to impact both the quantity of care (length of service) and the quality of care (amount of services provided) through operational policies and practices implemented by home health agencies that preclude patients who are not expected to improve.

• Based on HHVBP, PPS, PDGM, quality reporting measures, quality star ratings, MAC decisions and OIG audits, home health agencies often alter service delivery policies and procedures broadly, not by individual case, to maximize their own goals. Expanding HHVBP would join a long line of CMS policies that are compounding to significantly limit the ability of a Jimmo beneficiary to access home health care services. As CMS does not require home health agencies to report information about patients to whom they deny services, and CMS does not know how drastically services to Jimmo patients have been impacted, CMS should not assume that the currently available aggregate data tells the story of the harm CMS policies have caused to Jimmo beneficiaries. The proposed expansion of HHVBP only crystalizes the CMS message to home health agencies that Jimmo beneficiaries can be, turned away from Medicare-covered home health care without consequence.

• The problem facing Jimmo beneficiaries was highlighted in a recent issue of Home Health Line[11], a publication focused on serving home health providers. The question was asked: “What is missing in the national model pitched by CMS in the proposed rule?” The answer included the following:

Agencies that have worked under the initial HHVBP model since 2016, have noted that the measures are largely focused on improvement, even though there are home health patients who are not expected to see improvement during their period of care.

“We are still going to advocate for measures that reflect stabilization, as well as improvement,” says Mary Carr, vice president for regulatory affairs at the National Association of Home Care and Hospice (NAHC), speaking during a webinar June 30.

“CMS is aware that improvement measures only reflect a subset of home health patients, she says.”

• HHVBP discriminates against Jimmo beneficiaries, leaving them harmed by an inability to access legally-covered home health care.

• In response to previous Center comments on the discriminatory nature of the HHVBP model in final rules, CMS continuously responded as follows:

Comment: Many commentators suggested that stabilization measures should be recognized in HHVBP as opposed to just focusing on improvement measures, given that stabilization is sometimes a more realistic goal than improvement for certain patients.

CMS Response: We previously discussed our analyses of existing measures relating to stabilization in the CY 2016 HH PPS final rule. Specifically, we stated that while we considered using some of the stabilization measures for the model…we have not identified any such measures that we believe would allow for meaningful comparison of HHA performance. Although we appreciate commenter’s concerns that some beneficiaries may have limited opportunity to improve and that stabilization may be a more realistic goal for such patients, based on these analyses, we do not believe these measures are appropriate for inclusion in the Model at this time.[12]

• Not only does HHVBP discriminate against Jimmo beneficiaries, it creates a “survival of the fittest” mentality among providers. The few agencies remaining that are willing to serve all patients, including patients with longer-term, chronic conditions who qualify for coverage, may be financially penalized and/or audited for providing such services. Worse still, such agencies may instead join the agencies that have told the Center they have to “sacrifice the few (Jimmo patients), in order to serve the many,” by not admitting patients who will not improve.

• In CMS’s effort to simplify care for complex patients, and minimize burden on providers, the burden has instead fallen squarely on people like Mrs. J, who lives every moment of her life challenged by her condition. The inability to access legally-covered home health care also results in increased medical complications, more inpatient admissions, and additional stress on patients and their caregivers. It is a heavy burden that there are no meaningful measures for Jimmo beneficiaries in the HHVBP program. There is no evidence that CMS has sought out experts who can determine how to devise meaningful and inclusive measurements. But, there must be measurement experts CMS can engage who can determine how to measure everyone[13]. Six years of CMS providing the same excuse not to locate or develop appropriate quality measurements, for HHVBP or for the Quality Reporting Program, is inexcusable.

• In addition to the discriminatory effect of HHVBP, CMS should further consider where the expected billions of dollars of HHVBP savings may come from over the next decade. It will not come from offsetting HHVBP penalties and rewards, and not out of PDGM bundled payments that counter-intuitively reward “efficient” providers for delivering less care. Providers will continue to keep the entire calculated PDGM payment, the Medicare program will not realize expected savings, and patients will be provided increasingly less home health care.

HHVBP should be suspended, reviewed for all the reasons previously stated, and not expanded unless and until measure sets account for all patients equally.

As an alternative, if CMS expands HHVBP, CMS should remove all patients with maintenance goals from HHBVP inclusion until all measures, incentives, and disincentives equally reflect their needs and qualifications for Medicare coverage as for those beneficiaries who can improve.  This alternative is not a solution, and will not make Jimmo beneficiaries any more desirable to home health agencies, but it would not impose affirmative punitive HHVBP measures on agencies for serving patients with longer-term, chronic conditions.

• The Home Health Quality Reporting Program (HH QRP) Suffers the Same Flaws as HHVBP

In the proposed rule, CMS states, “the proposed expanded Model [HHVBP] measures mostly align with those under the HH QRP” (FR 35921). The Center cites the same reasons as discriminatory under HHVBP apply to HH QRP.

The Center finds the following proposed replacement measure to be an improvement over the existing measure, if properly monitored, and without the deletion of “Emergency Department Use”:

[to replace] The Acute Care Hospitalization During the First 60 days of Home Health (NQF #0171) Measure and Emergency Department Use Without Hospitalization During the First 60 Days of Home Health (NQF #0173) Measure [with] the Home Health Within Stay Potentially Preventable Hospitalization Measure beginning with the CY 2021 HH QRP. (Emphasis added)

Beneficiaries who have complex, longer-term, and/or chronic conditions, and are therefore at a higher risk of hospitalization or emergency department use, should not be denied access to Medicare-covered shunned from home health care services because an agency fears some type of policy/quality measure retaliation for patients who may have unpreventable hospitalizations  or need for emergency department care. “Emergency Department” should be added to the proposed replacement measure.

• PDGM Does Not Adequately Serve Patients or the Medicare Program and PDGM Does Not Provide Appropriate Case-Mix Adjustments for Patients With Complex or Longer-Term, Chronic Conditions

Since the beginning of a home health prospective payment system (PPS), a pre-calculated, all-inclusive payment model, many home health agencies that attempted to serve all Medicare-coverable patients, including those with longer-term and chronic conditions, have not survived. With the advent of PPS twenty years ago, the home health industry has changed from less than 50% for-profit ownership, to 87% for-profit ownership.[14] Mergers and acquisitions are high – home health care is a profit magnet, with more savvy investors pouring into the home health industry all the time.[15]

PPS systems fail complex and chronic patients who try to access care at home.  Unlike hospitals, home health providers can largely pick and choose which patients to serve. Regrettably, many home health agencies have taken advantage of their broad discretion combined with lack of CMS oversight to select patients who are most profitable under PPS. This practice disadvantages and excludes beneficiaries with longer-term, chronic conditions.

Nonetheless, CMS provides an idyllic description of PDGM’s purpose: “To better align payment with patient care needs and to better ensure that clinically complex and ill beneficiaries have adequate access to home health care” (FR 35879). This statement flies in the face of reality. As described above, the current systems fail clinically complex and ill beneficiaries. Appropriate access to necessary care is the exception; unfair barriers to care are the norm. We hear from patients and advocates about these barriers daily. No one knows how many beneficiaries in need are left out of care, or discharged summarily, although they continue to qualify for Medicare-covered care.

PDGM heavily weights post-institutional and the first (early) 30-day period to the significant detriment of people with longer-term, chronic conditions. Results from the first year of Medicare’s home health payment system, PDGM (Patient Driven Groupings Model) reveal that Medicare home health payments for the first 30 days of care are, on average, more than 34% higher than for subsequent 30-day periods of care – regardless of the amount of home health services a patient needs, or for how long.[16]

Case-mix weights[17] in PDGM are applied to a national standard base rate, calculated with a labor component for the geographic region serving the patient. The first full year of PDGM illustrated the sharp payment decline to agencies after 30 days of home health care. The table below, shows the decrease in case-mix (equating to a similar decrease in payment), from the first 30 days to the second 30 days of care for the complete list of  clinical groups in PDGM (every patient fits into one of these clinical groups). After the first 60 days of home health care, payments decline even further.

PDGM Case Mix for 2020 Data[18]

*MMTA = Medication, Management, Teaching and Assessment

The Center for Medicare Advocacy frequently hears about patients prematurely discharged after only five weeks of care. The agency strategy for five weeks appears clear – secure the higher, first 30 day PDGM payment then roll into the next 30 day period, pick up the full 30 days-of-service PDGM payment, and discharge the patient during the first week of the second period, having complied with LUPA and “behavioral adjustment” criteria for that period. The second period payment isn’t as high as the first period, but if the agency only provides a week’s worth of services for a month’s worth of payment, it is a profitable strategy.

Several other beneficiary concerns about PDGM include:

• PDGM exacerbates concerns regarding inequities in available care. Consideration of social determinants of health will be more meaningful when CMS develops a payment system that does not discriminate on the basis of illness or injury and when CMS does not allow agencies to pick-and-choose beneficiaries to serve based on inequitable policies.

• The fixed dollar loss ratio that determines outlier case payments will always be re-adjusted to maintain the 2.5% cap of all payments. Since 2010, outlier payments (for more significant levels of care) have been cut by more than a billion dollars. Most of the reductions have resulted in care not being provided for those who have significant needs and are not accommodated in the remaining 97.5% of payments generated through PDGM.

• Elimination of split-percentage provider payments (partial payment at the beginning of a period of care, and remaining payment at the end), will push the few remaining smaller home health agencies out of the market if, unlike large home health entities, they cannot afford to wait until after care is provided to receive payments.

Observed negative impacts on beneficiaries, caused by PDGM since implementation, are summarized as follows:

• Medicare beneficiaries who were not recent inpatients and/or need more than 30 days of home health care experienced greater problems accessing care.

• Beneficiaries with longer-term and chronic conditions who are unlikely to improve experienced a decline in the availability of Medicare home care services.

• Beneficiaries with hospital observation, outpatient, or emergency stays experienced a decline in access to home health care, since PDGM treats them as admissions from “the community” and attaches lower reimbursement rates.

• Beneficiaries who need and qualify for Medicare-covered therapy received less therapy.

• Beneficiaries with severe functional impairments and comorbidities have even greater problems accessing care, as agencies determine they do not receive enough of a payment boost through PDGM case-mix adjustments to provide care.

• Access to home health aide care continues its precipitous decline and home health aide services for beneficiaries who were not recent inpatients also declined.

• Home health agencies increase affiliations to provide home health aide services on a private-pay basis.

• The number of not-for-profit home health agencies further declined.

• Home health agencies increased affiliations with inpatient health care institutions, and/or institutions acquired home health agencies.

• Inpatient health care institutions increasingly refer patients to affiliated home health agencies.

• Home health agencies increasingly only hire enough sufficient staff to provide care for “profitable” Medicare beneficiaries – people who have had prior inpatient institutional care, and people who need short-term care.

• Smaller, non-affiliated home health agencies are closing, or only take private-pay patients.

• For dually eligible Medicare and Medicaid beneficiaries, more necessary home health care for people with longer-term, chronic conditions is being shifted to Medicaid.

• More Medicare Advantage plans are employing artificial intelligence, prior-authorization methods to limit the services they will allow home health agencies to deliver.

Sophisticated strategies by home health agencies, within a bundled payment PPS system, minimize services and maximize profits. This manipulation is a kind of fraud in plain sight. There are exceptions, and dedicated clinicians who do incredible work (mainly for patients with short-term, post-acute care needs), but, by-and-large, Medicare-covered home health care is becoming business first and foremost. Providers are savvy enough to deliver services over the level of LUPA and stay under CMS target radar for “behavioral adjustments”. Agencies that skimp on providing services are often lauded by CMS as “efficient” providers, making 23.4% profit on traditional Medicare patients by keeping  a full payment for care, while minimizing actual delivered care, and shifting more care and costs to Medicaid and private-pay. In addition, many home health agencies contract with low-paying private Medicare Advantage plans to obtain referrals for their other commercial lines of insurance business. MA plans aggressively undercut payments and services and traditional Medicare provides agencies with significant profit to subsidize losses from MA plans.

To our knowledge, there is not one federal enforcement or oversight function currently addressing under-delivery of care. State enforcement agencies are typically absent from the process, citing overwhelming state enforcement work with no band width to take on responsibility for oversight of the federal Medicare home health program. Regrettably, PDGM rewards waste and abuse in the Medicare program, by paying home health agencies prospectively, allowing agencies to reduce delivery of services and to inappropriately discharge patients with few repercussions for compliance infractions. The Office of Inspector General (OIG) and Medicare contractors do not audit to protect either the program or beneficiaries by investigating agencies that underserve patients, even when practices such as refusing to accept or prematurely discharging beneficiaries with chronic conditions may constitute discrimination on the basis of disability. Instead, applying incorrect standards, they only focus on agencies “overserving” patients. Agency profit margins bear this out, year after year. As MedPAC reports, home health agencies post approximately 16% profits every year (23.4% for “efficient” providers).[19] This represents millions of dollars resulting in profit that could be going to patient care.

PDGM is a significant factor in reducing, and often eliminating, access to ongoing home health care for beneficiaries with complex or longer-term, chronic conditions. CMS should review this payment system and develop payments, policies, and practices that support home health care for all individuals who qualify for Medicare coverage under the law.

• Frequently Heard Access Issues Described to the Center by Patients and Home Health Agencies

The Center for Medicare Advocacy hears daily from beneficiaries and agencies. It is important for CMS to consider this information as well as comments CMS receives directly from beneficiaries. These continue to be the most common home health access issues raised with the Center:

From Patients:

• I can’t find an agency to provide me care; my care is being reduced; I’m being discharged even though I still need care.
• The home health agency tells me I’m not homebound (when the patient clearly meets homebound criteria);
• I’m told I must be able to improve to get care;
• I’m told I don’t need skilled care (even when they need a service specifically considered skilled and covered by federal regulations);
• My family and/or I should be able to provide the care ourselves (even when clearly unable to so);
• I can only get home health aides 1-3 times a week; I can only get home health aides for a bath; a bath a week; I am told that Medicare doesn’t pay for aides, but that I can get them if I private pay.

From Agencies:

• We don’t have enough staff;
• Medicare doesn’t pay enough;
• Medicare doesn’t pay for aides;
• MA plans cover less and pay worse than traditional Medicare;
• Compliance is challenging;
• Audits are intimidating;
• Value-based and quality programs only measure improvement.

The Center is eager to continue to work with CMS and Congress to address home health access problems. We urge CMS to uphold Medicare home health coverage law so that Medicare-covered home health care is available to everyone who qualifies. CMS should also ensure that home health agencies which minimize care are not rewarded with profits and incentives under CMS policies and practices.

Although outside this proposed rule, it is important to comment on a bill currently being considered in Congress that would allow Medicare beneficiaries to “choose” to receive up to 100 days of a skilled nursing facility level of care at home. Home health agencies do not administer or deliver the current Medicare home health care benefit properly. Adding a skilled nursing facility level of care at home, which would require an intense level of skilled staffing and new payment incentives, may further decimate the ability for people, especially those with on-going and chronic conditions,  to access Medicare-coverable home health care.

Conclusion

The Center for Medicare Advocacy urges CMS to place the interests of all Medicare beneficiaries at the heart of its payment models, quality measures, policies, and practices. How providers get paid and measured drives who gets access to care. Thus, these rules must carefully reflect Medicare coverage laws, and advance Congressional intent to provide Medicare-covered care. Payment rules and Quality Measures –present, and proposed, fall short of this standard. We urge CMS to consider the collective impact of all Medicare home health payment rules, quality measures, policies, and practices on the actual availability of necessary, Medicare-covered home care for qualifying beneficiaries.

In summary, the Center urges CMS to act as follows:

• Address serious access problems that exist for Medicare beneficiaries who are unable to obtain Medicare-coverable home health care.

• Develop policies and practices to ensure necessary home health aide services, as provided by Medicare law, are made available and delivered to beneficiaries by agencies.

• Suspend the Home Health Value Based Purchasing Program in its current discriminatory form, as it will significantly harm beneficiaries with complex or longer-term, chronic conditions by denying them access to home health services.

• Re-evaluate the Quality Reporting Program and replace measures that have the same flaws as the Home Health Value Based Purchasing Program, to advance access for all beneficiaries who need and qualify for services under the law.

• Review and redesign the Patient Driven Groupings Model, which has created significant access obstacles, to advance access for all beneficiaries who need and qualify for services under the law.

New rules should be proposed that encourage agencies to provide care for all people who qualify under the law, for all services covered under the law. A study of traditional Medicare and Medicare Advantage home health payments should be undertaken to ensure traditional Medicare is not subsidizing Medicare Advantage and that Medicare Advantage is not further limiting covered care.

We appreciate the opportunity to submit these comments on behalf of all those who have the legal right, and urgent need, to obtain Medicare-covered home health services.

Respectfully submitted,

Judith Stein, J.D.
Executive Director/Attorney

Kathleen Holt, M.B.A, J.D.
Associate Director/Attorney

For additional information, please contact Kathleen Holt, at Kholt@MedicareAdvocacy.org or Judith Stein at Jstein@MedicareAdvocacy.org, or at (860)456-7790.

[1] 42 USC §1361(m)
[2] MedPAC March 2021 Report to Congress, page 232 http://medpac.gov/docs/default-source/reports/mar21_medpac_report_to_the_congress_sec.pdf
[3] Id. at 245.
[4] https://www.cms.gov/Center/Special-Topic/Jimmo-Center
[5] 42 USC §1361(m)
[6] Decision Health Publication – Home Health Line https://homehealthline.decisionhealth.com/Articles/Detail.aspx?id=533478
[7] https://bmchealthservres.biomedcentral.com/articles/10.1186/s12913-020-4902-7; https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/Chronic-Conditions/Downloads/Methods_Overview.pdf
[8] https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/hhvbp%20computing%20the%20hhvbp%20composite%20measures.pdf
[9] Id. at page 5.
[10] Id. at page 6.
[11] Decision Health Publication – Home Health Line https://homehealthline.decisionhealth.com/Articles/Detail.aspx?id=533478
[12] https://www.govinfo.gov/content/pkg/FR-2017-11-07/pdf/2017-23935.pdf, page 56532.
[13] See, e.g., measurable goals in maintenance therapy. The Post-Acute Care Guide to Maintenance Therapy by Cindy Krafft, PT, MS and Diana L. Kornetti, PT, MA, HCPro, a division of BLR, 2015.
[14] MedPAC March 2021 Report to Congress, page 243 http://medpac.gov/docs/default-source/reports/mar21_medpac_report_to_the_congress_sec.pdf
[15] https://homehealthcarenews.com/2020/10/ma-experts-cant-recall-a-time-when-demand-has-been-higher-in-sizzling-in-home-care-market/
[16] Strategic Healthcare Programs National Client Database, as reported by DecisionHealth on February 25, 2021.
[17] PDGM case-mix weights include: Admission Source (institution or community), Functional Impairment Level (low-medium-high), Co-Morbidity Adjustment (none-low-high). https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HomeHealthPPS/Downloads/Overview-of-the-Patient-Driven-Groupings-Model.pdf
[18] Strategic Healthcare Programs National Client Database, as reported by DecisionHealth on February 25, 2021.
[19] MedPAC March 2020 Report to Congress, page 257-258. http://www.medpac.gov/docs/default-source/reports/mar20_entirereport_sec.pdf?sfvrsn=0