The Rule-Making Process is an opportunity presented to us in the home health industry to submit comments and/or concerns to CMS to try to influence a Proposed Rule or Regulation.

The Rule-Making Process: An Unknown Opportunity

I have worked in the Home Health & Hospice industries since 1992.  For the first 5 years of my career I was a Medicare Auditor; and for the last 20 years as either an agency executive in, or a consultant to the industry.   Over the last 20 years, I have been surprised at the industry’s lack of participation in the Rule-Making Process.  I travel around the country with some regularity speaking about various financial issues impacting the home health industry; including the Rule-Making Process.  On average, I’d say it’s generally about 10% of attendees at these functions that identify that they know about the Rule-Making Process and our opportunity to submit comments; implying that 90% do not know.  And of that 10% that do know, only about 10% of them identify that they have actually submitted comments to a Proposed Rule.

How Can This Be?

I attribute this lack on knowledge to the actions (well, lack thereof) of the perceived leaders of this industry.  Many, if not most industry leaders do good things for the industry in many areas.  However, this is one that it seems that they all uniformly do poorly in.  Many, regularly submit comments to CMS proposed changes; so they know about this opportunity.  However, they have all failed to educate the industry on the importance of participating in the Rule-Making Process.  And I believe that I can say that without exception.

I have also attended national, state and local conferences all over the country for over 20 years and I have NEVER heard any talks about the importance of participating in the Rule-Making process, or how to participate by submitting comments.  NEVER!  Had NAHC, the State Associations, the VNAA and other leaders of the industry that have been around for decades been educating the industry on the importance of their participation in the Rule-Making Process, I have absolutely no doubt that industry participation would be up over 10-fold (if not 100-fold), and this industry would not be operating in the acrimonious environment that we currently find ourselves in!

The Rule-Making Process: A Misunderstood Opportunity

As I previous mentioned, I have always been surprised how many in this industry do not know of the opportunity to submit comments to a Proposed Rule.  The Rule-Making Process affords us in the industry (really, all interested parties) an opportunity to express our comments and/or concerns about any significant proposed change by the Centers for Medicare and Medicaid Services (CMS).  This opportunity, is one that has a long track record of being squandered by the home health industry.  For some examples, see the following:

Various CMS Rule and Regulation Changes and the Rule-Making Process

Various CMS Rule and Regulation Changes Subject to the Rule-Making Process

The above are a sample of various Rule/Regulation changes implemented by CMS.  We had an opportunity to submit our comments and/or concerns to every one of those.  The first column identifies the applicable year(s).  The second column identifies the type of change (a normal, routine rule change or a unique, special-focus rule change).  Column 3 gives a brief description of some of the issues germane to that rule change.  The last column identifies the # of comments submitted for that proposed rule.

This was during times that there were at least 8,500, to upwards of 13,000+ Medicare Certified HHAs!  And, as identified above, the # of comments submitted ranged from 89 to 541.

The Rule-Making Process: Missed Opportunities

As you can see, there has NEVER been a significant volume of comments submitted by/for the Home Health industry.  You may ask “Who can send in comments?“.  Well, the correct answer is ANY interested party can submit comments; including all owners, employees, vendors, consultants, attorneys, etc… (including beneficiaries; which has happened on occasion).  Any interested party can submit comments to any/every significant proposed rule/regulatory change.  That is the case now, and that has been the case since before I entered the industry, over 25 years ago!

This is a classic example of the industry ‘not knowing what it needs to know!’ Unfortunately, there are a myriad of issues like this that permeate the entire home health industry (the importance of budgeting (less than 50% of the industry prepares an annual budget), using proper budgets (80% of those that do budgets do not follow this premise); monthly financial-operational analysis; identifying profitability by payor; identifying both Medicare and Total CPVs; calculating the financial impact of any Proposed/FINAL Rule, etc…).  As I previously noted, I have been speaking around the country intermittently for 20 years; and with a great deal of regularity for the last 10+ years.  And, for the last 10+ years, this has been an issue that has grown in significance in my talks and presentations.  That is because of the lack of understanding that:

  1. the opportunity exists to comment on proposed rule changes and
  2. many that do know don’t bother, wrongly believing that their participation won’t make a difference.

This has to change!


The Rule-Making Process: Industry Apathy

I previously noted that only about 10% of those that I have presented to over the years knew about their ability to participate in the Rule-Making Process.  Additionally, less than 10% of those had ever submitted a comment.  However, if 10% of the industry (the approx.12,000 HHAs) would submit their own set of comments, that could amount to more than 1,200 comments for every CMS proposed rule change.  And that’s before even counting those interested in, but not agency employees, that would also submit comments.

Additionally, there are over 500,000 employees working in home health; let alone all those working in/with home health, but not as employees.  So if we’d take 1% of 500,000 (being conservative), we’d have 5,000.  That would be a lot of comments; at least historically speaking.  But when we look at the above table, we can see that the industry has only exceeded 210 comments two-times; and 500 comments once, per the 11 Rule changes identified; and these were significant rule changes.  See the following overview of the comments submitted:

  • Only 151 for CY 2008: the original implementation of the ‘Nominal Change in the Case-Mix Weight Adjustment’ (this adjustment alone has reduced HH reimbursement by over 20% since 2008!)
  • 100 comments for CY 2014: the start of Rebasing!
  • 119 comments for CY 2016: the start of the HH VBPD
  • Approx. 200 in Feb-Apr 2016: the Prior-Authorization Proposed Rule (became Pre-Claim Review)
  • and ONLY 89 comments for CY 2017: the Outlier calculation changed to a ‘Per Unit’ approach

Why So Few Comments?

So why have so few comments historically been submitted when at least 10% of the industry unequivocally knows about the Rule-Making Process?  Apathy!  There is too much apathy in this industry for its own good!  Too many don’t want to do it because:

  • They don’t want to take the time
  • They’ll just leave it for everybody else to deal with
  • They’ve been beaten-up too hard, for too long
  • Many believe it to be too financial
  • Others believe it to be too difficult, and lastly,
  • They don’t want to put a target on their agency

Time for a Change!

There is never enough time if one does not make the time!  This holds true personally and professionally.  Unfortunately, there are, and always will be, too many that are more than willing to leave the work required up to others; and all of us in this industry have been beaten up too hard for too long: but we do have the ability to fight back.  That is what this post is all about!

All proposed rule changes are not entirely financial in nature.  The annual HH PPS Rule seems to always have topics covering Case-Mix issues, Quality Metrics, etc… that are clinical in nature.  Many proposed rule changes are more (if not totally)  clinically oriented (F2F, PCR, CoPs, etc…).  And the difficulty that most of people find when trying to participate has to do more with organizing and managing the Federal Register publication properly (and IFS can help you here) and/or with issues outside of their areas of expertise; for example me, when the issue is about what diagnosis codes score points and when those point values change.  I am financial and that is a clinical issue. If the financial people in this industry addressed the financial issues and the clinicians/therapists addressed the clinical side and owners/administrators addressed the operational issues, this industry would be in a lot better shape!

And for those issues that are too contentious, the HHAs can also prepare comments and have them submitted by their vendors, consultants, associations, etc…  Comments can also be submitted anonymously.

If You Want Change, Help Make the Change Happen!

Ever since I have entered the industry workforce (as an employee or a consultant), I have heard this industry complain about what CMS (or HCFA back in the day) has done.  I will also state that many of these arguments have been correct in my opinion as well.  However, much of what CMS has done has been because of the inadequate participation in the Rule-Making Process by the home health industry.

We Can Do Better

We Must Do Better


To improve the environment that we work in, the industry (i.e., owners, managers, employees, vendors, consultants, attorneys, etc…) must begin to participate in the Rule-Making Process in greater and greater numbers.  The apathy that has existed (for whatever reason) in this industry for way too long regarding this issue has to change; and change quickly.  Look at how much more contentious the working environment has become over the last 10+ years.  The industry has an acrimonious relationship with CMS; at best.  This is directly and significantly attributable to the industry’s apathetic attitude toward the Rule-Making Process; because our industry has let CMS do what they have done to us.  This isn’t anybody else’s fault; this is our fault.

For too long this industry has managed and worked on a reactive basis; generally still does.  This is not a recipe for success.  This industry has to assume a more proactive approach to most all aspects of this industry; including the Rule-Making Process.  This is an opportunity that we can no-longer afford to squander!  Just imagine what CMS will think when industry comments for a proposed change go from the current 100-200, to 1,000-2,000, or maybe even 5,000-10,000.  Then this industry would become a force to be reckoned with; one that CMS would have to start paying attention and listening to.

  • And not only should we want this
  • We need this!


Consider This:

Under which option does the HH industry have a better chance to impact what CMS does to our industry?  Option #:

  1. Ignore the opportunity to submit comments and concerns about CMS’ proposals and then complain about what they did in the final rule (which has historically been the case), or
  2. Greatly increase participation in the Rule-Making Process by submitting comments en masse, by the 1,000s

There should be no question here.  The answer is categorically option # 2.  This is a proactive approach and gives us an even stronger case to fightback against CMS when they finalize an overly onerous and potentially debilitating rule.  And there is precedence for this!

The Surety Bond Incident

It was back in 1998, when CMS (then, known as HCFA) finalized a horrendous proposal requiring all Medicare Certified HHAs to obtain a Surety Bond.  See the following which was excerpted from the Jan 5, 1998 Federal Register:

HH Surety Bond - FINAL Rule with Comment Period of Jan 5, 1998

HH Surety Bond – FINAL Rule with Comment Period of Jan 5, 1998

This was during the cost-based reimbursement era of home health.  HHAs strived to ensure that as close as possible to 100% of the costs incurred to run the agency were considered allowable for Medicare (which was virtually impossible for most, and this was an era where your could not make a profit in Medicare).  The costs for a Surety Bond were NOT going to be ALLOWABLE for Medicare.  Therefore, all Certified HHAs were guaranteed to lose at least as much as the cost of the Surety Bond each year (at a minimum).

Interesting Fact:

The original charter for the Medicare program stated that all costs incurred by an entity to operate in the Medicare program would be deemed allowable for reimbursement (paraphrased, but …)The Surety Bond Premium was not going to be allowable; in direct conflict with the original charter!

The industry submitted comments; but not many, as has been the industry’s norm.  HCFA (now CMS), issued their FINAL Rule in the July 31, 1998 Federal Register.  The Surety Bond was required to be the greater of $50,000 or 15% of the prior year’s Medicare reimbursements.  This was going to be catastrophic to the industry.  1,000s of HHAs would have closed.  This policy would have bankrupted 1,000s of HHAs as the newly required ‘non-allowable’ cost (the premium for the Surety Bond) was going to be too much for many HHAs to bear.  Premiums were initially projected to be between 1-5% of the Surety Bond, but the lack of a market for these insurance contracts (and other issues) had the premiums projecting to be closer to 10% of face value!

What Did the Industry Do?

I believe the industry submitted around 300 or so comments on this issue.  I was one that that did submit comments to HCFA when the opportunity was available.  Following are the comments that I had submitted:  Surety Bond Comments @ 6-05-98.

Additionally, a march on Washington was called.  Now, NAHC does this every year (but w/much less effect).  Handouts of talking points were passed around to the couple hundred individuals that traveled to Washington to meet with legislative representatives from both houses of Congress. I met several other individuals while in Washington for the march that had submitted comments as well (but unfortunately, only a few).  However, the vast majority of attendees had not submitted comments, so all they had to go by were their opinions and the talking points handout.

Meeting with Members of Congress

We broke into small groups of 4 or 5 to meet with the various members of Congress.  Every member of Congress (House or Senate) we met with also had their healthcare aide present for the meetings.  Meetings generally lasted about 30 minutes.

My group initially consisted of 5 individuals: myself, one of the owner’s of the organization I worked for and 3 other individuals that each owned their own separate HHA(s).  After introductions, for the next 10 minutes the 4 HHA owner’s voiced their complaints about the Surety Bond issue.  Then, almost as if rehearsed, the Senator asked his aide if he had any questions, and the first question he asked was: “Did anyone submit comments when there was an opportunity to?(I always thought HCFA had prepped them).  For a moment, you could have heard a pin fall on the carpeted floor!  But I then spoke up and rose from my seat.  I noted that I had submitted comments and I handed a copy of those comments to the Senator’s aide.  For the next 10-15 minutes, all questions were directed at me.

For the remainder of the day, the owners’ would leadoff of the discussion with their opinions and the talking points and then identify me as a submitter of comments on this issue.  I would then become the focal point of the remainder of the conversation.  Afterwards, I talked with a couple of the others that I had previously met that had also submitted comments, and they noted the same thing occurred in their groups.  Those of us that had submitted comments and had provided copies thereof were given greater deference with the members of Congress and their aides because of the effort that we had made when the opportunity was afforded us.

The Result

About two weeks later, Congress sent HCFA a letter instructing them to eliminate all aspects of the Home Health Surety Bond.  And it was ended! The industry won; we had defeated the mighty beast that was HCFA and the Surety Bond regulation!

There is absolutely no question in my mind that those of us that actually submitted comments when the opportunity was there and handed our comments out to the members of Congress turned the tide in this instance.  No question at all.  From that day on, the importance and value of participating in the Rule-Making Process has been ingrained in me.  This is why I am so adamant and passionate about the Rule-Making Process.  I have lived and seen first hand the difference participating in the Rule-Making Process can make.

We can make a difference.  Please join in and help the home health industry to help itself!

How to Participate in the Rule Making Process

Both the Federal Register and CMS have pages germane to the Rule-Making Process.  See the following:

  • Federal Register’s Rule-Making Process web-page
  • CMS’s Rule-Making Process web-page: e-Rulemaking

In fact, the Department of Homeland Security (DHS), has an excellent document about how to participate in the Rule-Making Process:

Additionally, Regulations.gov has help features to help you better understand and to participate in the Rule-Making Process.  See the following:

So, as you can see, the government is not trying to hide our opportunity to participate in the Rule-Making Process.  It’s just that most of the industry does not really know about this; having never been taught this.  As such, they don’t know how important active participation in the Rule-Making Process really is!


Preparing and Submitting Comments

Keep an eye out for our upcoming post about preparing and submitting comments as part of the Rule-Making Process.

Coming soon!