Prior Authorization Requirement – Comments Submitted

Following is a copy of the comments that I submitted regarding the CMS proposal of establishing a Prior Authorization Requirement for all home health services in the five states noted (FL, TX, IL, MI & MA).  I give anyone/everyone free rights to use my comments (or any part thereof) to help formulate your own comments for submission, but I do not give anyone permission to just copy and paste my comments for their own submission because that actually works to undermine the impact of those comments.  If you believe, as I and many others do, that this Prior Authorization Requirement will be detrimental to home health and the beneficiaries we care for, please be sure to submit your comments on/before the April 5th deadline.  If you are going to submit comments on this proposal (which everyone really should) and you are going to use my comments or someone else’s as your own, please just be sure to re-word those comments so that a majority of the verbiage used in your comments is original/in your own words.  And you do not have to incorporate all of my, or anyone else’s comments in your own.  There is nothing wrong with picking out one or two ideas/concerns that you feel most strongly about and just focusing from that/those perspective(s); and anytime you can include how it would be detrimental to the Medicare beneficiary really helps!

• Using the ideas someone else presents is fine, but not the same verbiage!

 

Comments can be submitted via the following link:

• Link:  Submit Comments for the Prior Authorization Requirement
  • And just click on the [Comment Now!] box to access the page to submit your comments.

 

• The Actual IFS submission:  Comments on Prior Authorization Proposal v1a

 

Following is a copy of what was submitted for this proposal (please excuse some of the inaccuracies in the numbering/bullet-points as they are due to the limitations of WordPress as a blogging tool):

 

CMS

Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development

Attention: Document Identifier/OMB Control Number 0938-NEW

Room C4-26-05,

7500 Security Boulevard

Baltimore, Maryland 21244-1850

 

Dear Sir/Madame,

I want to thank-you for the opportunity to participate in the rule-making process by commenting on the aforementioned proposed rule.  I, and the rest of the industry respect and applaud your attempts to eradicate fraud and abuse from the home health industry, and we would love to assist you in this endeavor.  However, I myself (and I know a great deal of the industry) believe that the instances of fraud and abuse in the home health industry are blown way out of proportion.  That being said, although I support your intent to eliminate fraud and abuse, I believe that this proposed regulation is one that is going to be harshly punitive to the industry overall and is going to have little to no impact on that handful of HHAs perpetrating fraud and abuse.  Following, I respectfully present my comments and concerns regarding this proposal:

1. While we in the home health industry are all for ferreting out fraud and abuse in our industry, we are adamantly against any more use of these industry wide-approaches utilized by CMS for way too long, when the more appropriate approach would be the direct targeting of those agencies that have demonstrated numerous indicators of fraud and abuse that CMS itself has identified as the rationale for prior ‘like-kind’ proposals.  These types of bureaucratic regulations do little to weed-out the perpetrators of fraud and abuse and just add more bureaucratic red-tape for all the law abiding HHAs to deal with; increasing their administrative costs at the same time!  And, we as an industry are not reimbursed for these incremental increases in administrative costs.  As identified with most significant cases of fraud and abuse with home health agencies, there are referral sources in collusion with those HHAs and this type of approach will not likely impact those types of arrangements and/or reduce fraud, but a direct intervention (e.g., on-site audits/reviews) most likely would and would also create an additional detriment to any future actions as such.   The cost-benefit ratio of any proposal such as this is skewed much too highly to the cost side of the ledger!

 

2. To use the Powered Mobility Device (PMD) ‘prior authorization’ demonstration as being akin to home health is an egregious analogy as the beneficiary’s needs in each segment are significantly different and not analogous to each other.  The PMD beneficiary can generally wait the 14-28 days for a review and determination because this is not a detriment to their acuity level/healthcare needs; whereas the home health patient is generally in need of the prescribed services immediately upon referral and to delay those services would likely (greatly) increase the chance of exacerbations, complications and (re-) hospitalizations.  So this analogy and approach would seem to be a very short-sighted perspective to try to address a long-term issue: generally, not a good combination!

 

3. This proposal is also quite likely to significantly increase the administrative costs to the home health segment of Medicare and the Program overall. HHAs would be effected because of the significant increase in documentation requirements for any payor that utilizes the ‘prior authorization’ methodology; but even more significantly would be the impact to the regulatory bodies (likely the MACs) that will be doing the ‘prior authorizations’.  There is absolutely no doubt that moving to a ‘prior authorization’ approach to administering healthcare services to the beneficiaries will greatly increase the administrative costs to provide any/all services to the beneficiary:
   1. HHAs will need additional administrative support staff to track and manage the ‘prior authorization’ process throughout the entire process (from the moment of referral to the reconciliation of the final payment).  This will increase administrative costs for all HHAs (and this is not a subjective guess, but an empirical fact which can be readily quantified; which we would be happy to do in a public hearing setting with members of Congress present).  This will obviously increase the total and unit cost of service across the board for all HHA services, and yet a significant portion of these incremental increases in costs applicable to Medicare will be allocated to non-Medicare payors as well by the Medicare Home Health Cost Report because it poorly allocates costs amongst Medicare and non-Medicare payors because it has not keep pace with the changes to Home Health Reimbursement, especially since the inception of the OASIS and PPS (which means the HH Medicare Cost Report does a poor job of identifying Medicare and non-Medicare costs with any degree of accuracy).  This is partly why there is a significant difference between the Medicare Margins (i.e., profits) in Home Health reported by CMS and MedPac as compared to those margins identified by the industry.  And,
   2. The Total and % of Medicare funds that will actually go directly to beneficiary services will decrease:
      1. More of the Medicare funds will be allocated to oversight as the administrative bureaucracies of CMS, the MACs, etc… continue to increase in size and scope, thereby requiring more and more of the funds set aside for the program.  This will in-turn leave less and less available to the agencies that actually perform the services for the benefit of the beneficiaries: meaning less and less of the Medicare funds are actually used to provide direct patient-care services to the beneficiary.
      2. Numerous federal (or pseudo-federal) departments, organizations etc… have been created over the years, all requiring support from the Medicare fund to basically do redundant procedures that CMS and the FI/MACs have always been funded to provide/perform.  In the Home Health (HH) industry, this type of duplication of services has always been meet with disallowances by Medicare (via the FI/MAC audits, etc…).  Yet, this duplication of services (and therefore duplication of costs), has been allowed to proliferate over the last 15-20 years, which has obviously created an additional strain on the Medicare Program, and we in the industry are forced to bear the brunt of this financial hardship.
      3. If the desire of this proposal is to justify additional bureaucratic levels to oversee the program (and to wrest monies from the program), then there is absolutely no doubt that this proposal will do just that!  But to present this proposal as a tool to fight fraud and abuse in HH is disingenuous at best, and perhaps abusive on the part of CMS!
         1. If organizations in the industry did this type of juggling, would they not be held out as fraudulent and/or abusive HHAs?

 

4. CMS and the FI/MACs have always had the ability to review all services provided for all patient episodes (and still do), and all services that were deemed excessive and/or not warranted have been denied by the Program.  Therefore, these so-called unnecessary services should not have been reimbursed by the Medicare program to begin with (although historically, a significant % of those services initially denied by Medicare are subsequently overturned and deemed reasonable and allowable services by objective reviewers of the documentation of those services).  So again, why does CMS feel the need to require a ‘pre-authorization’ process which will unquestionably negatively impact patient-care, and will undoubtedly result in reduced Home Health Compare Scores and Home Health Star Ratings for most, if not all agencies affected, while having little to no impact on fraud and abuse (such that there is) in Home Health?
   1. There is no doubt that this will decrease HH expenditures in all effected states (at least initially).  However, it will likely cost the program even more via (re-) hospitalizations and/or admissions into other acute and/or post-acute care settings.  Just because this provision, if enacted, would cause a decrease in expenditures, this in no way equates to savings/reductions in fraud and abuse!  There is not a direct correlation here!  Every segment of healthcare that incorporates a ‘prior-authorization’ process realizes a reduction in expenditures and this is because this type of approach, this kind of administrative procedure is much more about reductions to expenditures than it is to impacting/reducing fraud and abuse.  So although HH expenditures will undoubtedly be reduced, much if not all of this reduction will be for services that are wholly warranted for that beneficiary’s condition but do not get ‘prior authorization’ approval and are therefore not provided: artificially reducing the services being provided to any given Medicare beneficiary.

 

5. CMS and the FI/MACs have long had the ability to visit the HHA location and do an on-site audit/review of any/all aspects of what an agency is doing.  In the not-so-distant past, the FI/MACs used to do this with some regularity (as an ex-Medicare Auditor I know that).  However, this is something that has not been done with any regularity and/or volume since the inception of PPS, and as such, CMS and the FI/MACs have lost greater touch with what it actually takes to operate an HHA and to provide the necessary services to the beneficiary in a timely manner.  This lack of coordination with the industry (which pre-dates PPS) has led to a barrier being erected between CMS, etc… and the industry to the detriment of all (including the Medicare beneficiary).  This provision will further exacerbate this disconnect and alienate the HHAs and the beneficiaries that we service, from those that regulate Medicare Home Health.

 

6. This proposed rule will unquestionable put patient-care/patient-lives at risk!  Requiring a ‘prior approval’ for any/all services necessary is in no-way patient-care oriented.  As mentioned above, this new regulation would delay necessary services to patients thereby increasing program costs and causing many beneficiaries to suffer through unnecessary exacerbations and/or (re-) hospitalizations and/or admissions into other acute and post-acute settings, as well as sometimes putting beneficiary lives at risk!  This is purely a cost-cutting proposal proposed under the guise of combating fraud and abuse.  Additionally, this proposal will counteract other CMS provisions meant to reduce re-hospitalizations, etc… and in so doing create further financial penalties to a great many of those entities overseen/impacted by the various re-hospitalization, Value-Based (et al) provisions; and if this should come to pass, CMS should bear the responsibility for these negative results as opposed to passing on those resultant impacts to other healthcare segments, such as home health and hospitals.

 

7. Numerous studies over the years have clearly identified the correlation between the timely delivery of healthcare services (across all spectrums) and patient outcomes, and that the timelier the necessary services were provided, the higher the patient-care outcomes would be.  This meant that the patient’s quality of life would be improved (or at the least better managed for those with chronic conditions).  This proposal flies in the face of these studies and common-sense in that it is guaranteeing that the timely delivery of care in the home health setting is going to be negatively impacted in a significant way, such as:
   1. At admission
      1. This may require acute-care settings to maintain these patients on their rolls for longer periods of time or risk increased re-hospitalization rates, etc… and financial penalties.
      2. This will potentially increase the average patient acuity-level due to these delays before being seen by the HHAs.
         1. And this will not be caused by the HHAs gaming the system, but because of the increases in exacerbations, etc… prior to receiving approval of services to be provided.
   2. When spontaneous/immediate changes in patient’s conditions arise, the HHAs hands will be tied awaiting ‘prior approval’ for any/all changes in treatment plans for the beneficiary, resulting in increased (re-) hospitalizations and adverse patient conditions that could have and probably should have been avoided (creating potential lawsuits).  And these untimely patient exacerbations and possibly deaths will be the fault of the regulatory process we in the HH industry must deal with because these ‘so-called’ fraud and abuse fighting proposals put forth by CMS are done in an inappropriate manner because CMS did not utilize a direct approach (actual facility visits/audits) but instead used an unspecific, industry wide approach.
      1. This is akin to performing surgery with a dull-axe as opposed to a scalpel!
         1. a) To carpet-bombing an entire area as opposed to using a smart-bond to pinpoint the specific problem!
      2. In that collateral damage does not seem to be a concern of this proposal;
         1. a) Neither to the adversely harmed, innocent HHAs of the industry,
         2. b) Nor the adversely effected beneficiaries we care for

 

8. Additionally, this proposal is much too vague in its wording and certainly does not set up any regulatory pressures on CMS should many of the adverse outcomes noted above and by other commenters come to pass.  CMS should no-longer be able to propose such vague and far reaching proposals without significant back-up and support (something we in the industry deal with every day) as to what CMS expects will and will not happen in regards to this and any proposal hence forth!  There should be specifics addressed in the CMS proposal concerning, but not limited to the impact on the:
   1. Timeliness of services
   2. Turn-around time of the prior authorization process
      1. How long it will take
      2. What’s the expected increase in administrative costs to:
         1. a) The HHAs?
         2. b) The FI/MACs?
         3. c) The Program? And what are the benefits?
   3. The likely impact on patient-care services/outcomes
   4. The impact on reimbursement to the affected states and how much would be applicable to:
      1. Reductions to fraud and abuse as opposed to
      2. Just overall reductions in reimbursement because services are now being managed more from a financial perspective as opposed to a patient-needs perspective
   5. The likely impact of (re-) hospitalizations because of any delays in services due to the prior authorization process
   6. To what extent patient care/outcomes are likely to be negatively impacted
   7. Why this industry-wide approach is better and more efficient for the program than actually going out and auditing those HHAs suspected of fraud and abuse.
   8. Etc…

 

9. Additionally, if this proposal is enacted, all HHAs in all the states included in this demonstration should immediately become exempt from the Face-to-Face provision as this would be just another redundancy that would no-longer be necessary!
   1. If the services are being approved by the Program, why should a Face-to-Face visit be required?

 

Again, I, and the rest of the industry are 100% behind your premise to weed out fraud and abuse in home health.  But we can be fully behind your intentions and still be 100% opposed to any specific proposals, as we are in this case.  More often than not we are not in complete disagreement with your proposals, but this is one of those instances in which I believe that we as an entirety are.  We believe that a much more conducive environment could and should exist between CMS and the HH industry and if that were to come to pass, that this environment would help reduce/eliminate fraud and abuse from the home health industry.  We would love to have the opportunity to work in concert with CMS to make this a much more efficient and effective segment of healthcare; and home health is an efficient and effective segment, but working together we could make it better.  However, as long as this adversarial environment continues to exist, it is highly unlikely that we as providers of care or you as administrators of the program are ever going to become as effective as what we could be together.

I thank you once again for the opportunity to comment on this proposed regulation, even though I am fully opposed to this proposed regulation in its entirety.

Respectfully,

John

John M. Reisinger, CPA (TN licensed)

Principal

Innovative Financial Solutions for Home Health

Advocate for and consultant to the home health industry

Cc:  US Senate Budget Committee, Finance Committee and the Committee on Health, Education, Labor & Pensions

US House Budget Committee, and the Ways and Means Committee

 

Not submitted, but informational in nature:

Our belief is that this is a proposal that will have little to no impact on fraud and abuse in home health (if the referral sources are colluding with fraudulent HHAs, what good would this do?), but will significantly reduce the services provided to the average beneficiary on an arbitrary and subjective approach, will delay the provision of services to the beneficiary which can certainly entail exacerbations, increased use of hospitalization and/or other acute/post-acute care settings, and/or even in death in some cases.  This will be because of the government bureaucracies overly regulating the industry and will quite likely cost the Medicare Program more monies even though reducing expenditures in the home health arena.

• The potential costs of this proposal would seem to far outweigh any potential benefits that might be realized!