The Steering Committee of the Coalition to Preserve Rehabilitation (“CPR”), a coalition of 57 organizations that advocate for policies to ensure access to rehabilitative care so that individuals can regain and/or maintain the maximum level of health and independent function, recently submitted comments expressing concern about a proposed CMS Demonstration project for inpatient rehab facilities/hospitals (IRFs). The Center for Medicare Advocacy serves on the CPR Steering Committee.
The Review Choice Demonstration involves reviews of Medicare claims. Under the Demonstration, IRFs will be subject to “100% pre-claim or post-payment review for their Medicare claims until they meet the ‘target affirmation rate,’” at that point, they can forgo the 100% pre- or post-payment review but would still be subject to selective review or so-called “spot checks” on 5% of their claims. The Demonstration is scheduled to be implemented in Alabama on August 21, 2023, before expanding to Pennsylvania, Texas, and California, and eventually other states in several Medicare Administrative Contractor (“MAC”) jurisdictions. CPR submitted comments regarding the proposed Demonstration, raising concerns that it will limit access to IRF care for people who need it and qualify under appropriate Medicare criteria.
On July 26, CMS issued a revision of the proposed Demonstration guidelines, incorporating several changes suggested by CPR and recognizing key Medicare coverage standards long championed by the Center for Medicare Advocacy. As CPR notes:
“in particular, CMS addressed the CPR Coalition’s concerns relating to [Medicare] reviewers utilizing “rules of thumb” to improperly and categorically deny claims, which is barred under the Hooper v. Sullivan case. CMS added language in the revised operational guide (see below) to clarify that MACs must determine medical necessity based on the individual facts and circumstances of each case, and not on the basis of any threshold of therapy time (See, IRF RCD Operational Guide (PDF)).”
The Center for Medicare Advocacy, lead counsel in the Hooper lawsuit, is grateful to CMS for these important revisions. The revisions include the following new language, in bold, below:
Under current industry standards, this intensive rehabilitation therapy program generally consists of at least three hours of therapy per day and at least five days per week. In certain well-documented cases, this intensive rehabilitation therapy program may consist of at least 15 hours of intensive rehabilitation therapy per week. However, this is not the only way that such intensity of services can be demonstrated. The reviewer shall determine medical necessity of the intensive rehabilitation therapy program based on the individual facts and circumstances of the case, and not on the basis of any threshold of therapy time (IRF RCD Operational Guide (PDF).