August 5, 2022
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-1766-P, P.O. Box 8013
Baltimore, Maryland 21244-8013
Submitted electronically to: https://www.regulations.gov
Re: File Code CMS-1766-P; Federal Register, Volume 87, No. 120 (June 23, 2022) DEPARTMENT OF HEALTH AND HUMAN SERVICES, Centers for Medicare and Medicaid Services; Medicare Program: Calendar Year (CY) 2023 Home Health Prospective Payment System Rate Update; Home Health Quality Reporting Program Requirements; Home Health Value Based Purchasing Expanded Model Requirements; and Home Infusion Therapy Service Requirements – Proposed Rule
The Center for Medicare Advocacy (the Center) provides these comments regarding CMS-1766-P and the impact of the proposed rule on access to home health care for vulnerable older and disabled people.
The Center is a national, non-profit law organization that works to ensure access to Medicare, health equity, and quality health care. The organization provides education, legal assistance, research and analysis on behalf of older people and people with disabilities, particularly those with longer-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 annually. 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 current reimbursement system for home health agency providers, and the Unified Payment System, a potential future payment model.
Multiple sections of the proposed rule provide a CMS definition of health equity that embodies the mission and work of the Center for Medicare Advocacy, as we advocate for all Medicare beneficiaries to access home health care services:
CMS defines health equity as the attainment of the highest level of health for all people, where everyone has a fair and just opportunity to attain their optimal health regardless of race, ethnicity, disability, sexual orientation, gender identity, socioeconomic status, geography, preferred language, or other factors that affect access to care and health outcomes. (FR 37664, 37672)
It is the unfortunate reality, however, that decades of CMS home health care policies and practices have cumulatively restricted and prevented access to Medicare-covered home health care services for many eligible beneficiaries with longer-term and chronic, disabling conditions. The Center urges CMS to take necessary, actionable steps to commit to health equity and remove discriminatory barriers to home health services.
Health care probably represents big business for most responders to this proposed rule. At the Center, we have no agenda other than to speak for individual Medicare beneficiaries who need covered services, often to sustain life. The Center does not bring economic expertise, statistical analytics, or measurement methodologies to the proposed rule conversation. We do not hear from most beneficiaries for whom aggregated data analysis is intended to promote a more efficient and appropriate care delivery system. Instead, we regularly hear from beneficiaries who are not represented by the aggregate data and who struggle to obtain access to services because their health care needs are more complicated, and/or are required for longer than many beneficiaries for whom the aggregate system is modeled. The Center hears daily from the most vulnerable patients who are unable to access Medicare-covered home health care, despite exhausting Medicare.gov’s Home Health Compare tool to contact every Medicare-certified home health agency in their home zip code.
At the Center, we apply our legal expertise in daily work with individuals, thousands of beneficiaries, one at a time, each of whom has their own stories to tell about real barriers to access Medicare-covered home health care services. We are a highly resourceful organization. When we exhaust almost all the tools in the legal toolbox to eliminate inappropriate obstacles, and we consistently cannot help individuals across the country who have longer-term and chronic conditions to find and sustain legally covered services, we know the barriers are real, system-wide, and becoming increasingly insurmountable. Further, many beneficiaries we work with are likely individuals who fall within CMS’s definition of health equity and the policies affected by that definition.
To demonstrate a strong commitment to the Medicare program, health equity, and all beneficiaries, the Center believes CMS must meaningfully address inappropriate access barriers. CMS’s proposals for agencies to attest to training on issues of diversity, equity and inclusion (FR 37665-37666) are important, but they will not promote necessary actionable advancement in health equity until CMS addresses significant underlying obstacles in existing payment systems, quality measures, audit practices, and claims payment processes.
Although the home health proposed rule concerns traditional Medicare (it cannot appropriately be referred to as “fee-for-service”, given more than 20 years of a home health PPS), in consideration of the Medicare program, it must be noted that necessary oversight by CMS of private Medicare Advantage is inadequate, as recognized by the HHS Office of Inspector General (OIG). HHAs have also indicated growing concern with MA plans and some have proposed refusing MA cases collectively and calling for more government oversight. MA plans may be taking “advantage” of their ability to make and follow rules and policies that do not follow Medicare law, regulations or policy.
The Center hears regularly from MA enrollees who meet Medicare criteria for home health services, but who are denied prior authorization, or who are granted approval for a limited number of services, inadequate to meet their care needs. Appealing denials may yield additional services, but MA plans know that less than 1% of Medicare beneficiaries in MA plans appeal denials, although 75% of beneficiaries who appeal have their appeals approved, according to the HHS OIG. Beneficiaries should not be forced to deal with overly aggressive denials by MA plans for covered services. Given all the red flags about Medicare Advantage, CMS should protect the Medicare program and take a more active role in ensuring that MA plans follow the law and rules under which they contract with Medicare to provide services to beneficiaries.
Center for Medicare Advocacy Survey of 217 Medicare-Certified Home Health Agencies Confirms Medicare Beneficiaries are Likely Misinformed and Underserved.
In addition to identifying patterns of service barriers from beneficiary direct-service calls, the Center hears about the struggle to obtain access to services from beneficiaries when we provide educational programs for advocacy groups. We regularly conduct presentations for such groups, including: the Administration for Community Living, California Health Advocates, the Christopher and Dana Reeve Foundation, the Michael J. Fox Foundation, Team Gleason, the Multiple Sclerosis Society, and Paralyzed Vets of America. Confirming our own direct service concerns about systemic home health care access barriers with large groups of beneficiaries led us to want to hear directly from home health agencies, and also from 1-800-MEDICARE, about how much they know and understand about Medicare coverage, and what they tell patients about coverage. Thus, between April and November of 2021, the Center surveyed 217 home health agencies in 20 geographically diverse states. The full report is here: https://medicareadvocacy.org/wp-content/uploads/2021/12/CMA-Survey-Medicare-Home-Health-Underservice.pdf
In summary, the Center’s 2021 Home Health Agency Survey found the following:
- Misinformation about Medicare coverage and qualifications is widespread.
- Home health aide services, in the amount or type defined in the Medicare benefit, are almost impossible to get.
- Home health aides are only considered “bath aides” throughout the industry.
- An inappropriate improvement standard continues to be communicated and implemented, in violation of the Jimmo v. Sebelius Settlement.
- MA plans cover less, deny more, and are harder to work with.
- Calls to 1-800-Medicare yield inconsistent and inaccurate information.
- The quality measures used to rank home health agencies on the CMS website are unhelpful and misleading.
The Center encourages CMS staff members, and any other interested party, to phone any home health agency listed in the Medicare.gov Home Health Compare Tool and inquire about services for a longer-term and chronic condition – the availability of such services is few and far between.
Years of Cumulative Medicare Programmatic Policies and Practices in Home Health Undermine Advancement Toward Health Equity
The Center appreciates that CMS is responsible for tens of millions of beneficiaries, and many individuals likely receive appropriate services determined by policies and practices necessary to administer an efficient and effective program. But for people with longer-term and chronic conditions who are marginalized by a program that discriminates against their health care differences, terms like “person-centered care”, “health equity”, “value-based” and “quality” are often not achievable.
The Center has written frequently about beneficiary-experienced barriers to Medicare-covered home health care and continues to raise the following issues, which are antithetical to achieving access to care and health equity for all beneficiaries:
- CMS allows home health agencies (HHAs) overly broad discretion in choosing patients they determine will result in the most profit. Typically, individuals with, short-term, lower-than-average resource requirements appear to be most favored. This acts to the detriment of patients with chronic, disabling conditions who are denied an equal opportunity to benefit from care as those without chronic disabilities, and are placed at risk of unnecessary institutionalization.
- Payment incentives drive delivery of services for profitable patients, often those who will be able to improve. The 2023 value-based purchasing model expansion will exacerbate this problem (see section on value-based purchasing comments).
- CMS currently has no mechanism to track the growing number of patients who are denied access to Medicare-covered home health services.
- Providers, agencies, contractors and auditors are inadequately trained about Medicare-coverage and appear to lack CMS oversight or necessary remedial education.
- Contractors and auditors employ inappropriate standards when reviewing claim criteria.
- Annual rebasing exacerbates loss of patient access to services, as data is based on home health services HHAs choose to deliver rather than the real service needs of patients.
- CMS has not considered the collective impact of payment, quality and audit policies and practices creating barriers to access.
- Agencies likely subsidize private MA plan losses with traditional Medicare profits.
- MedPAC’s (Medicare Payment Advisory Commission) definition of access is flawed and assumes all agencies take all patients in a given zip code. While this may be true for some types of patients, it is not true for sicker and more resource-intense longer-term and chronic patients.
- MedPAC’s definition of “efficient” providers endorses under-delivery of services via profit maximization.
- The conclusion that Medicare patients likely have high access to home health agencies because they generate 22% profit does not account for the fact that agencies have cherry-picked the most profitable patients under PDGM to achieve that high profit level while underserving or refusing to serve patients who require more resources and would be less profitable.
- When the final rule is published, HHAs will analyze the most profitable current case-mix strategy, which will not include many “higher resource” patients affected by health equity, and HHAs will prioritize patients accordingly.
Payments – The Primary Driver of Home Health (HH) Utilization (FR 37605-37607):
CMS data shows that delivery of home health services continues to trend away from patient needs and coverage, and toward HHA service delivery payment incentives:
- Home health aide services alone have dropped from a 30-day average of 6.7 visits in 1998 to less than half a visit in 2021. In the past 4 years alone, home health aide visits declined 35%.
- Total visits for all service disciplines per individual for the equivalent of a 30-day episode dropped by 17% in the past 4 years.
- PPS PDGM is structured to allow HHAs to keep a full 30-day’s worth of service payment, after the low utilization payment threshold is met, providing a profit-incentive to under-deliver services.
One example of utilization statistics influenced by profit-taking strategies is a separate revenue stream for Medicare-covered home health aides developed by some HHAs and their affiliated companies, typically requiring private payment or Medicaid. We hear about this practice from a growing number of geographically diverse beneficiaries. It was also noted by surveyed HHAs and discussed by the Center in previous comments regarding proposed rules. Although Medicare-covered home health care, including up to 28-35 hours of aide services, is covered by law and falls within consolidated billing requirements, HHAs have found ways to “unbundle” services and bill multiple funding sources through legally creative accounting practices. It would be Medicare fraud on its face if a HHA privately billed beneficiaries for aide services that are Medicare coverable. To avoid this potentially shady unbundling, many agencies do not staff aides, or have minimal aide staffing, and they also own, or are legally affiliated with, a related company that employs aides and personal assistants who may offer aide services through a non-Medicare certified agency. The result is that an HHA retains the entire PDGM payment while the “affiliate” or parent company obtains a secondary payment for aides. Patients cannot get the Medicare-covered services they qualify for and must find another way to pay for them.
The Center regrets that CMS chose not to continue addressing HHAs’ limited utilization of home health aides in this year’s proposed rule. This is a major concern for beneficiaries. In last year’s proposed rule, CMS highlighted the importance of home health aides and the Center commented, in part, as follows:
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.
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 below and at MedicareAdvocacy.org) 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.
The Final Medicare Home Health Rule for 2022 acknowledged the need for, and the inadequacy of, home health aides, leading CMS to articulate the agency’s commitment to ensure aide services meet patient needs in the following response:
We appreciate the robust comments in response to the adequacy of aide staffing questions. Ensuring home health workforce staffing adequacy is any important concern and we take reported shortages seriously. We will continue to review the information received as we consider ways to ensure that aide services are meeting the patient’s needs as such services are a critical part in maintaining safe, quality care.
The Center urges CMS to continue to explore and address this crisis and to ensure that aide services are available to meet patient needs to maintain safe, quality care. We also emphasize that, as demonstrated by the consistent and stark decline in the provision of aide services over the past two decades, the problem goes beyond any current staffing “shortages” and predates the COVID-19 pandemic.
Payments – Prospective Payment System (PPS) and the Payment Driven Groupings Model (PDGM) (FR 37603-37658):
- PPS and PDGM payments disadvantage higher-resource use patients because HHAs cherry-pick the most profitable patients maximize their profits based on payment incentives.
- CMS’s current proposals to reduce payments to HHAs will harm beneficiary access further.
- HHAs will adjust to the proposed loss in revenue not by reducing profits, but by reducing the number of services they provide to patients, while they continue to maximize profits.
- HHAs, however, should not continuously retain 16-22% PPS/PDGM profit year-after-year as they have done in traditional Medicare payments as a reward for services not provided.
- It is a mistaken assumption that traditional Medicare patients are attractive to HHAs because HHAs make 22% profit on Medicare patients. If HHAs served all Medicare patients who qualify for services, and provided the necessary services they qualify for, profits would be much more reasonable, and cuts would not be proposed or needed.
- CMS should enforce the home health Conditions of Participation (CoP).
- CMS should not allow traditional Medicare to subsidize HHA contractual underpayments and losses from private Medicare Advantage plans.
A proposed overall payment rate update impact of -4.2% (FR 37602), without a comprehensive plan by CMS to preserve patient access to services, is not an appropriate answer to address the provider behavior behind soaring HHA profits in traditional Medicare. The reason profits for traditional Medicare beneficiaries have reached this unreasonable level is that HHAs have significantly reduced the services they provide to patients. Cutting profits alone will only exacerbate beneficiary access problems and further limit access. It will not stop HHAs from adjusting their caseloads and further limiting delivery of services while continuing to make unreasonable profit from traditional Medicare.
The Center agrees that HHAs should not make 16-22% profit from traditional Medicare, year after year. If HHAs served all patients (or even a greater proportion of patients) with the appropriate services they need, instead of cherry-picking the most profitable patients, reasonable payment margins would likely be achieved. Further, unreasonable traditional Medicare profits should never justify HHAs subsidizing losses and low payments by other payers, such as private Medicare Advantage plans.
A recent HHA industry article stated that MA plans pay far lower rates for home health services than traditional Medicare while MA plans are making big strides in owning HHAs. The article reported:
- MA pays far lower rates for home health services compared to fee for service (FFS), Encompass Health Corporation (NYSE: EHC) said this week that MA rates are at a 40% “discount” compared to FFS. Intrepid USA Healthcare Services confirmed that number was about in line with its experience – and even suggested that the rates were sometimes lower than that.
- Two companies with significant market share in MA – Humana Inc. (NYSE: HUM) and UnitedHealth Group (NYSE: UNH) – have already – or are in the process of – acquiring two of the largest home health providers in the country in Kindred at Home and LHC Group Inc. (Nasdaq: LHCG), respectively.
- Some have described MA as the federal government’s “darling.” But, the Office of Inspector General (OIG) recently published a report condemning MA organizations for limiting beneficiaries’ access to necessary care and denying payments to providers for services that are covered under Medicare and MA billing rules.
- “It’s been a challenge because, not only is the rate lower, but the processing of the claims is 6-8 times harder for your back office revenue cycle,” Intrepid USA CEO John Kunysz told me, “They just put in so many hurdles.”
HHAs follow the money and adapt. Regrettably, too many Medicare rules and policies are discriminatory and permit HHA behavior. Some health care delivery is encouraged by payments, other care is discouraged. For beneficiaries with longer-term and chronic, disabling conditions, and dually eligible beneficiaries who typically use home health care at higher ratesaccess is too often out of reach.
Perhaps HHA behavior, and beneficiaries’ access to services, would improve if home health Conditions of Participation (CoPs) were followed by HHAs, and enforced by CMS. The proposed rule (FR 37615) states:
In addition, we believe that regardless of the case-mix system in place, HHAs should continue to provide the most appropriate care to Medicare home health beneficiaries, in accordance with the home health CoP requirements at § 484.60.
This statement assumes HHAs follow CoPs. However, we rarely speak to a beneficiary who has seen their plan of care, has discussed other care in the home, or who has had any idea that they have rights as a home health patient, as required by the CoP. Further, many patients who contact us say they are discharged by HHAs having had no consultation or agreement by the doctor who ordered the care to the discharge, in violation of the CoPs. But there is no CoP oversight from CMS, contractors, or auditors. We know the team at CMS responsible for creating the CoPs intended for them to be used and to work and, if utilized, the CoPs would improve access to covered services for beneficiaries. But, in reality, at least most of the CoPs do not appear to be respected or followed by HHAs.
The proposed rule adjusts the PDGM for more recent data. Current data continues to skew away from patient needs and toward the profitable services HHAs choose to deliver. In the future, for additional goals, such as health equity, to be properly considered, CMS and Congress should develop a payment system that will allow equal access to Medicare-covered home health services.
The Center has commented for many years leading up to the implementation of the PDGM, and through the initial years of PDGM implementation, that components of the PDGM discriminate against people living with longer-term and chronic conditions because payment weights favor HHAs serving patients who are post-acute care and only need 30 days or less of services. These repeated arguments against PDGM stand, albeit not directly solicited by CMS for purposes of responding to request for comments in the current proposed rule.
Telecommunications Technology (FR 37658-37659)
- Telecommunications use is appropriate if justified in the plan of care for an identified purpose.
- Telecommunications use should supplement health care only if so justified; it should not substitute for necessary in-person care.
- CMS should collect service use data to analyze characteristics of patients and patterns of use.
- CMS should identify a process for HHAs to report on beneficiaries who have legitimate orders for services, request a HHA assessment, but HHAs decline to assess or provide services ordered.
- CMS should identify a process for HHAs to report on beneficiaries precluded from telecommunication services due to technological limitations, or other related factors.
- Telecommunication services should not include use of home health aides since hands-on personal care is required.
Telecommunications may be valuable for beneficiaries when used to supplement a plan of care and when telecommunication services increase the likelihood of a patient achieving his/her goals. The Center agrees with CMS that the use of technology is not a substitute for provision of in-person visits ordered on the plan of care. The reason for a telecommunications visit, instead of an in-person visit, should be clearly documented by the HHA.
The Center is alarmed at the following statement by CMS, and what this means for beneficiary access and HHA service delivery strategies. Hopefully, this comment is in reference only to telecommunications technology and not all home health services. (FR 37658):
CMS does not routinely review plans of care to determine the extent to which these services are actually being furnished.
The Center urges CMS, and Medicare Administrative Contractors, to begin routinely reviewing plans of care to ensure services are actually being provided. Certainly, in reference to telecommunications, CMS should collect “data on the use of telecommunications technology to allow CMS to analyze the characteristics of the beneficiaries utilizing services furnished remotely to provide a broader understanding of the social determinants that affect who benefits most from these services, including what barriers may potentially exist for certain subsets of beneficiaries.” (FR 37658)
The Center reminds CMS that a significant number of beneficiaries, many of whom are impacted by social determinants of health (SDOH), are unable to access HHA assessments, and are therefore unable to obtain any home health services, in-person or by telecommunication. The Center asks CMS to identify a process by which HHAs are required to report patients with legitimate orders for services that they decline to serve and/or provide services less than ordered.
The Center agrees with the identified three new g-codes (FR 37659), respectively for audio-video, audio only, and remote patient monitoring, to determine use patterns and condition patterns. The Center encourages CMS to also consider collecting data about current patients who might benefit from telecommunication technology, but who are precluded from doing so due to technological limitations, or other related factors. An inability to access telecommunications may be more likely for individuals who are impacted by SDOH, thus identifying the limitations may provide CMS with better information about how to overcome them as CMS focuses on the need to increase and achieve health equity.
Regarding home health aides, the Center agrees with CMS. It is hard to envision when the use of telecommunications technology would be appropriate for home health aides since, by definition, they are to provide personal hands-on aide services. Medicare law and regulations require personal hands-on care by aides to patients, and the myriad tasks that are coverable by aides are not appropriate for telecommunications.
The Center encourages CMS to employ the broadest collection of data reasonable to support improvement of quality care for all patients, both for telecommunication and in-person services. These should include clinician type and data identifying both restorative and maintenance services.
Home Health Quality Reporting Program (FR 37659-37661)
- Current quality criteria inappropriately favors services for individuals with conditions that can improve.
- The combined impact of quality measures, payment incentives, audit practices and claim payments disadvantage patients with maintenance goals.
- Quality criteria that reward discharge from home health care discriminate against beneficiaries with life-time conditions who should not be discharged from covered home care.
- CMS should expand the HHCAHPS survey to identify premature or untimely discharges from necessary home health services to address the growing crisis in early and inappropriate discharges.
Current quality criteria penalize beneficiaries and HHAs serving beneficiaries who are living with longer-term and chronic conditions. CMS defines quality to require criteria that is widely applicable to beneficiaries who qualify for services. (FR 37659, see also 80 FR 68695-68696; 83 FR 56548.) As beneficiaries with maintenance goals are not “widely applicable” to the program (as most patients are expected to improve), quality criteria for maintenance patients have not been established. Examples of quality criteria that require improvement abound, while quality criteria generally fail to reward agencies for providing care for patients with maintenance goals.
Further, the combined impact of non-existent quality measures, payment disincentives, inappropriate audit practices, inaccurate claims results and soon-to-be, value-based purchasing payment incentives, all act in concert to deny access to home health care services for people living with longer-term and chronic, disabling conditions. The Center urges CMS to continue pursuing methods by which to measure quality of care for patients with maintenance goals.
Another example of this barrier to care, in both quality and value-based purchasing measures for some patients, is Discharge to the Community criteria. If discharge from home health care is a patient’s goal, as it is for most patients, measurement for it should be valued. But, discharge from home health care may be an unattainable prospect for patients with maintenance goals who have a life-long need for home health skilled nursing, therapy, and/or speech-language pathology. Therefore, Discharge to the Community criteria should not be applicable in all cases.
Information in the current HHCAHPS Home Health Survey addresses only satisfaction with services a beneficiary actually received. The Center urges CMS to expand the HHCAHPS Survey so that beneficiaries are allowed to address any experience with a premature or untimely discharge from necessary home health care, as a component of satisfaction with care. Collecting this data is necessary to better understand a growing crisis in early and inappropriate discharges. This data will allow CMS to examine general traditional Medicare program profit-taking information and to understand when discharge may, or may not be, appropriate for individuals with maintenance goals.
Ending the Suspension of OASIS Data Collection on Non-Medicare/Medicaid HHA Patients (FR 37662-37664)
- CMS should collect OASIS data on all payers to confirm high quality services are delivered to all patients with all payer sources with no discriminatory bias.
- Any discriminatory bias improperly applied to Medicare patients may be revealed by all-payer data collection.
- This process would support goals to focus more deeply on health equity and social determinants of health (SDOH).
- However, expansion of data collection should NOT take precedence over statistical reporting requirements that capture and explain lack of access to home health care by Medicare beneficiaries.
The Center supports CMS’s proposal to end the suspension of non-Medicare/Medicaid OASIS data collection and require HHAs to submit all-payer OASIS data for the purposes of the HH QRP beginning with CY 2025 HH QRP program year. HHAs should be expected to provide high quality services to patients from all payer sources with no discriminatory bias. This is particularly important as CMS begins to focus more deeply on health equity and SDOH. Given that hospice and long-term care hospital (LTCH) settings currently report all-payer data, it will further utilization data analysis in the home health setting. This expansion of data collection, however, should not take resource precedence over statistical reporting that may explain lack of access to home health care by Medicare covered beneficiaries.
Request for Information: Health Equity in the HH QRP (FR 37664-37666)
- CMS current policies and practices for PDGM payments, quality reporting, auditing, and claim payment systems discourage health equity.
- CMS proposals for HHAs to attest to staff and board/ownership training on topics addressing health equity are inadequate to achieve health equity.
- CMS should require HHAs to report data with meaningful insight to achieve health equity:
- Data about beneficiaries who meet qualifying criteria for coverage, but a HHA declines to assess them for services.
- Data about beneficiaries who are prematurely discharged by an HHA.
This statement, as noted in the Federal Register, bears repeating:
CMS defines health equity as the attainment of the highest level of health for all people, where everyone has a fair and just opportunity to attain their optimal health regardless of race, ethnicity, disability, sexual orientation, gender identity, socioeconomic status, geography, preferred language, or other factors that affect access to care and health outcomes. (FR 37664, 37672)
In order to strive toward health equity, CMS must require meaningful measures to benefit all patients and HHAs must attempt to provide necessary covered care to all who qualify. As was mentioned previously, the Center hears daily from the most vulnerable patients who are unable to access Medicare-covered home health care, despite exhausting Medicare.gov’s Home Health Compare tool to contact every Medicare-certified home health agency in their home zip code. Actions by CMS over the past few decades have created insurmountable barriers to care for maintenance patients – inadequate and discriminatory payment rules, quality measures, audit practices, claims denials, and misinformation about coverage rules. HHA mergers and acquisitions have created profit-driven business models that cherry-pick the most “favorable” beneficiaries to serve.
The Jimmo Settlement may have been a legal victory for maintenance patients, but for all practical purposes, CMS actions have abandoned beneficiaries living with longer-term and chronic conditions, disabilities, and other conditions often influenced by health care inequities. The Center raises this growing problem annually in the proposed rules. CMS use data bears out reduced delivery of services and increased profit-taking. Every year CMS says they will monitor access issues and CMS asks for suggestions to address our concerns. The Center understands the access problems encountered by beneficiaries. As time passes, more beneficiaries are giving up even trying to get legally covered services, because it is an exercise in frustration when many are already dealing with stressful health conditions. Further, fewer doctors are writing orders for needed care because:
- Many prescribing providers are unaware of the full scope of available home health services due to persistent myths and misconceptions about services; and
- HHAs will not assess their patients for services, even when those services are appropriately ordered and covered.
There is a growing crisis in access to services for the sickest and most disadvantaged beneficiaries. The Center implores CMS to act.
The proposed rules offer minimal “check-the-box” opportunities to address health equity, in the form of three domains. The domains would require HHAs to attest that their business plans include key diversity language and staff are trained in culturally sensitive care. With respect to the team at CMS charged with advancing health equity, it is devastating to every patient impacted by issues of health inequity who are suffering with no services, or greatly reduced services, to learn there are no meaningful actions proposed in this rule to provide them with actionable access to necessary services. Discriminatory behavior previously demonstrated by HHAs, via patient selection and service, for example, reveals that without incentives to satisfy HHA ownership or investors, such attestations will be largely meaningless exercises with no advancement in health equity.
While capturing HHA strategic planning and training data may be one of many first steps toward health equity, CMS should simultaneously capture active data to measure progress of health equity for the underserved population. To truly understand and address inequities, CMS should also require HHAs to capture and report:
- Data about beneficiaries who meet home health care qualifying criteria, but HHAs decline to assess; and
- Data about premature discharges (discharges not agreed to by the ordering authorized source or discharges made prior to the completion of services in the signed order).
Expanded Home Health Value-Based Purchasing (HHVBP) Model (FR 37666-37672)
- Competitive criteria for HHVBP payment incentives will erect further barriers to care for people with longer-term and chronic conditions.
- HHAs should not be expected to understand and/or believe the risk adjustment factors will support serving patients who may not improve.
- The risk adjustment factors for individuals with maintenance goals (total normalized composite scores (TNC)) are not weighted enough in the HHVBP program for HHAs to serve patients who may not improve.
- Limited amount of risk adjustment is likely to prove a “bridge too far” for HHAs to serve maintenance patients after factoring in existing payment, quality reporting, auditing, and claim payment policies and practices that discriminate against patients who may not improve.
- CMS should develop a mechanism to track patients who are unable to access care or are prematurely discharged from care.
The Center commented in-depth, to last year’s proposed rule, about HHVBP expansion and our concerns that HHVBP payment incentives would further negatively impact beneficiaries with longer-term and chronic conditions seeking access to necessary services. Members of the HHVBP Team from the Centers for Medicare & Medicaid Innovation (CMMI) met with the Center in November 2021 and described how the risk adjustment feature of the HHVBP model would “even the playing field” for all beneficiaries, whether a patient’s goals are to improve, maintain function, or prevent decline. Problematically, however, a significant number of criteria in the HHVBP model measure “improvement”. The Center’s ongoing concerns include:
- Will HHAs understand/use the nuances of the risk adjustment process?
- Will HHAs take the HHVBP criteria “on-their-face” and further avoid serving patients who are not able to improve?
- Is the risk adjustment, focused on the Total Normalized Composite (TNC) Change scores, weighted significantly enough in the HHVBP model to incent HHAs to serve people who are not expected to improve?
- Are there too many other policies and practices (PDGM, quality measures) that cause HHAs to avoid serving patients with maintenance goals, notwithstanding the risk adjustments made to HHVBP criteria?
In the pre-HHVBP roll-out materials released by CMMI this year, FAQs specifically addressed risk adjustment for patients seeking maintenance services. Through this material, CMMI seems to be seeking to reassure HHAs that all patients will be measured. But the limited amount of risk adjustment does not seem to be adequate for HHAs that currently choose to avoid assessing maintenance patients due to other payment, quality, audit, and claim payment obstacles to access.
It is critical for CMS to identify and monitor what the Center believes will be a further significant loss of access to services for people living with longer-term and chronic conditions due to the expansion of HHVBP. Or, CMS should confirm, as CMMI believes, that risk adjustment is significant enough to prevent further discriminatory behavior by HHAs. Perhaps the best way to monitor the issue is to keep careful track of the number of patients with maintenance goals to determine if services increase or decrease. If CMMI is convinced that risk adjustment will allow, if not encourage, access to maintenance patients, this should be closely monitored and measured because once a beneficiary has been declined the ability to access services by HHAs, there is currently no measurement mechanism to identify patients who are denied services. CMS should also clearly state in HHVBP materials that it is inappropriate to avoid serving patients with higher needs, or maintenance needs.
For beneficiaries with maintenance goals who are fortunate enough to receive any limited services, the Center again requests that the HHCAHPS survey be expanded beyond just services given. CMS should also query whether the amount of care provided was appropriate. Such inquiry will allow CMS to learn about services a beneficiary needed (but HHAs did not provide) and a beneficiary’s premature discharge.
One of the stated purposes of the HHVBP model is to provide incentives for better quality care with greater efficiency. (FR 37667). This may be the answer to better quality for many patients, but not for the most resource-intense, vulnerable patients who require care to maintain their condition or slow decline. The more egregious part of the HHVBP’s stated purpose is “greater efficiency.” In a prospective payment world, “efficiency” is code for less services for patients and more profits for providers. MedPAC uses this term as well, which begs the question from beneficiaries – if an HHA gets to keep Medicare dollars anyway, why would CMS or MedPAC want to support under-delivery of services when patients qualify for them? To be clear, the Center fully favors quality services from HHAs, but not just for beneficiaries who are expected to improve and for whom improvements are more easily measured.
The original HHVBP model demonstrated an average annual savings of $141 million to Medicare without evidence of adverse risks. (FR 37667) The Center encourages CMS and CMMI to actively seek evidence of potential adverse risks, rather than only consider high level aggregate data. For example, if data is only available for services actually provided, how is CMS monitoring those who will no longer even access services because of this program?
Further, it is unclear where a $141 million savings to Medicare comes from given the structure of PDGM payments, as once HHAs clear LUPA thresholds, HHAs keep the entire 30-day payment, regardless of the number of services provided. It would be helpful if CMS/CMMI could explain the savings expected to be generated by HHVBP, and if these savings are attributed to avoidance of other settings, such as emergency rooms and hospitals.
Health Equity in the Expanded Value-Based Purchasing Program (FR 37671-37673)
- Beneficiaries, and their advocates, are disappointed in CMS’s continued failure to address and achieve meaningful action for beneficiaries who qualify for Medicare-covered home health, but their condition is not expected to improve.
- Many “maintenance beneficiaries” fall within in the CMS definition of health equity and policies affected by that definition.
- CMS should develop a meaningful way to include all beneficiaries who qualify for services by re-examining all policies and practices from the lens of better access for maintenance patients.
Authors of the Fifth Annual Report Evaluation of the Home Health Value-Based Purchasing (HHVBP) Model, caution that if HHVBP does not uniformly affect all patients in the same way, the model could have important implications for health equity.
As was mentioned previously in these comments, rules, policies and practices addressing payments, quality measures, audits, and claims payment, present pre-existing barriers to achieving health equity. Some conditions and procedures are favored by existing rules, policies and practices, while other conditions, many of which are experienced by individuals for whom health equity is elusive, have not been addressed. However, CMS states:
Over the past decade we have established a suite of programs and policies aimed at reducing health care disparities including the CMS Mapping Medicare Disparities Tool, the CMS Innovation Center’s Accountable Health Communities Model, the CMS Disparities Methods stratified reporting program, and efforts to expand social risk factor data collection, such as the collection of Standardized Patient Assessment Data Elements in the post-acute care setting, and the CMS Framework for Health Equity 2022-2023. (FR 37672).
No doubt these tools and models are the beginning of well-meaning efforts by CMS and CMMI, but beneficiaries and their advocates continue to experience the consequences of a failure to achieve meaningful health equity. The promise of services for those who most need them has slipped further from the ability to access them. CMS aggregates data in such a way that has created a one-size-fits-all model, and if a patient doesn’t fit into that size, he or she cannot access services.
CMS states interest in specific actions the expanded HHVBP Model can take to address healthcare disparities and advance health equity. As a first step, the Center recommends identifying and enacting a process that counts all people who are currently unable to obtain necessary services or who are prematurely discharged from necessary care.
The Center encourages staff from CMS and CMMI to randomly call HHAs listed in Home Health Compare on Medicare.gov. Discuss several of the barriers facing beneficiaries impacted by health equity, especially for someone who has a condition that is not expected to improve. Ask what services the HHA could provide and for how long. We believe you will encounter consistent access barriers that fall far short of the coverage promised to Medicare beneficiaries under the law.
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 despite qualifying under the law.
- Develop policies and practices to ensure necessary home health aide services, as provided by Medicare law, are made available and delivered to beneficiaries by Medicare-certified 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.
- Provide additional education about Medicare-covered law, regulations, and policies to HHAs, Medicare Administrative Contractors (MACs), Quality Improvement Organizations (QIOs), and HHS OIG.
- Ensure MA plans are following Medicare-covered law, regulations, and policies.
- Add meaningful oversight and enforcement to the home health Conditions of Participation.
- 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.
- Prohibit traditional Medicare to subsidize HHA contractual underpayments and losses from private Medicare Advantage plans.
- Collect meaningful service use data to analyze characteristics of patients and patterns of use.
- Identify a process for HHAs to report on beneficiaries who have legitimate orders for services, request a HHA assessment, but HHAs decline to assess or provide the services ordered.
- Identify a process for HHAs to report on beneficiaries precluded from telecommunication services due to technological limitations, or other related factors.
- Prohibit the use of telecommunication services for home health aides, since hands-on personal care is required by aides.
- Expand the HHCAHPS survey to identify premature or untimely discharges from necessary home health services to address the growing crisis in early and inappropriate discharges.
- Collect OASIS data on all payers to confirm high quality services are delivered to all patients with all payer sources with no discriminatory bias.
- Require HHAs to report data with meaningful insight to achieve health equity:
- Data for beneficiaries who meet qualifying criteria for coverage, but the HHA declines to assess them for services.
- Data for beneficiaries who are prematurely discharged by the HHA.
- Develop a mechanism to track patients who are unable to access care or are prematurely discharged from care.
- Develop a meaningful way to include all beneficiaries who qualify for services by re-examining all policies and practices from the lens of better access for maintenance patients who require care to maintain their condition or slow decline.
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.
Kathleen Holt, M.B.A, J.D.
Judith Stein, J.D.
 Home Health Care News, July 26, 2022 LHC Group’s Keith Myers: To Fix the Medicare Advantage Problem, Cut Out the Middle Man – Home Health Care News
 In a February 2022 listening session between HHS’s Office for Civil Rights and aging advocates, the Center emphasized the importance of nondiscrimination enforcement in the context of the Medicare home health benefit. We recommended that CMS investigate the practices of Medicare-certified HHAs that tend to exclude or underserve beneficiaries with disabilities, and that CMS issue a “Frequently Asked Questions” document similar to the one issued for the COVID-19 public health emergency (stating, e.g., that individuals with disabilities may not be denied an equal opportunity to participate in and benefit from Medicare-covered home health services; providers may not refuse to admit or serve patients with chronic, disabling conditions in a way that prevents them from having an equal opportunity to benefit from care as those without chronic disabilities; and, in some circumstances, providers may be required as a reasonable modification to provide more resources to individuals with chronic disabilities than they provide to others.)
 MedPAC March 2021 Report to Congress, page 236 http://medpac.gov/docs/default-source/reports/mar21_medpac_report_to_the_congress_sec.pdf
 Id. at 37606, 37614.
 42 USC §1361(m)
 Home Health Care News, May 12, 2022 Fixing the ‘Toxic’ Home Health-Medicare Advantage Relationship – Home Health Care News
 Home Health Care News, June 27, 2022 Report Finds Dual-Eligible Individuals Use Home Health Care at Higher Rates – Home Health Care News
 42 C.F.R. §484.50
 See, particularly, violations in 42 C.F.R. §§484.50; 484.55; 484.60; 484.65; 484.75; 484.80; and 484.110.
 Evaluation of the Home Health Value-Based Purchasing (HHVBP) Model Fifth Annual Report (cms.gov); Home Health Care News, May 19, 2022 What HHVBP Means for Managed Care, SNF Utilization – Home Health Care News