And how we can impact the rules proposed by CMS
Introduction
The Rule-Making Process is one that all of us in the Home Health (HH) Industry should be acutely aware of. Unfortunately, it’s not as well know as what it should be. The Rule-Making Process (for us in HH) is where the Centers for Medicare and Medicaid Services (CMS) proposes a rule (i.e., a change in regulations, reimbursement, etc…), we in the HH industry are given a limited amount of time to comment on the CMS proposal (generally, 60-days), and then CMS collects, reviews, analyzes and considers the submitted comments and then sometime shortly thereafter (generally 1-3 months) publishes in the Federal Register the FINAL Rule. It is the changes in this FINAL Rule that will, for all intents and purposes, become law for us in HH.
We go through this one or more times each year. CMS proposes a rule for the upcoming year that will impact HH PPS regulations and reimbursement. Additionally, CMS will occasionally propose other rule/regulatory changes, such as when we changed over to ICD-10, when the new COPs were proffered, and when Prior Authorization was proposed (which became Pre-Claim Review), just to name a few.
Each time that CMS proposes a change that is considered significant enough, they must propose the change through the Rule-Making Process. For us in HH, just about any change that CMS’ proposes qualifies as being significant enough to be subject to the Rule-Making Process requirement.
History
Every year there is at least one Proposed Rule subject to the Rule-Making Process for us in HH (i.e., the Proposed Rule for the subsequent year’s PPS reimbursement). And with each rule, interested parties (which includes all entities that work in HH, and even beneficiaries of HH services) have the opportunity to submit comments to try to influence what is included in the Final Rule by CMS. I have been working in the HH industry since 1992, and the Rule-Making Process has been around longer than that!
Unfortunately, the larger national and state associations have not historically educated the HH industry (particularly the agencies, owners, and employees) on the importance of participating in the Rule-Making Process and subsequently there has been a dearth of industry participation therein. Quite often the Proposed Rules offered by CMS are fairly benign (such as in 2020, 2021 & 2022). However, quite often CMS’ proposals are not benign (such as in 2008, 2010, 2011, 2012, 2014, 2016, 2017 & 2023, to identify a few). Generally speaking, industry participation applicable to those troubling Proposed Rules was lacking. See the Proposed Rules (most) since 2008 and the count of industry submitted comments below:
Original versus Copy-and-Paste Comments
As you can see, the # of comments submitted in any given year was not very significant; especially when you consider that there were 13k+ licensed, operating Home Health Agencies (HHA) in just about every one of those years. There were a couple of years (2018 & 2019) when there were 1.3k+ comments submitted Unfortunately, a significant portion of those were copy-and-paste comments. Copy-and-paste comments are generally comments put together by some organization and then shared with others who then copy-and-paste the comment and then submit as though it was their own. Some submitters will change the beginning and/or the end to try to personalize, but most do not, and it is very obvious that the comments are not original. Although this does increase the # of comments submitted for the industry, I believe that this is of little (if any) value to the industry, because they are not original. Think of it like you are a parent (or a teacher) and have a # of children that are in trouble for something, so you decide to have them each write a brief explanation of what they did and why it was wrong. What value do you attribute to the explanations that are clearly original, versus what kind of value do you attribute to the handful of explanations that are (for all intents and purposes) exactly the same? Do you give the same value to the handful of explanations that were copied and pasted? Or do you have all of them re-do their explanations since none of them did the exercise on their own, expressing their own thoughts and recriminations? So, what kind of value do you think CMS gives to these copy-and paste comments?
Every year there were 250/300+ comments submitted there were a significant # of the copy-and-paste comments. You could look at the comments that are viewable in each year’s Proposed Rule docket (CY2023 docket). To demonstrate the materiality of this allegation, I went through all of the comments (as posted thru 8/31/22), trying to identify the copy-and-paste comments, while briefly reviewing all comments submitted.
This is a link to all the comments submitted and reviewed: Industry Comments. Originally, I was trying to color-code the like-comments, but eventually just decided to just highlight all the comments I noted as copy-and-paste to allow for easier identification.
To go to any comment, enter the link: https://www.regulations.gov/comment/CMS-2022-0109-0023, and then just type in the last four digits of the comment ID (in place of the last four digits in the URL). For example, I have one that has been identified as ID CMS-2022-0109-0021, so you would ensure that the last four digits, which are: 0021 are in the URL (in place of the existing last four digits).
I am not trying to discourage industry participation, but I would suggest that the larger national and state associations make a list of the various issues they deem significant and maybe include some talking points about each issue, but do it in such a way to force those using their ideas to have to put the specific verbiage for their comment(s) together themselves so as to give the comment(s) an air of originality. I believe that this would increase the value associated with each comment submitted; which could be invaluable should we ever have to contest any part of a Final Rule as promulgated by CMS (which has been successfully done in the past).
The Final Rule
Once the open-period for submitting comments has ended, CMS will gather and review all the comments and prepare the Final Rule for publication in the Federal Register. This process will usually take anywhere from 30-90 days; 60-90 being the most common, but can push 120 days on occasion. The more significant the proposed changes; particularly in a negative sense to the industry, the longer CMS will take prior to publishing their Final Rule.
CMS tries to publish the Final Rule at least 30-60 days prior to its going into effect; but sometimes it takes CMS longer. Generally speaking, when CMS publishes a Final Rule it is for all intents and purposes law as far as we in HH are concerned.
Potential Push-Back on a Final Rule
However, if what CMS finalizes seems so egregiously wrong that the industry continues to push back against CMS, we do have the opportunity to go to Congress to plead our case. I know that NAHC organizes a lobby-day in Washington DC each year, but this is something different. The lobby-day is where industry reps meet with their members of Congress to discuss various home health related issues; but any deadline is more or less fluid. If we meet with Congress because of the perceived egregiousness of any part of a Final Rule published by CMS, the deadline is of significant importance, because we are meeting with members of Congress to try to minimize or eliminate a hurtful change put forth by CMS.
What gives us credibility if (when) we meet with members of Congress is if we had previously submitted comments to the Proposed Rule when the opportunity was afforded us. I know this for a fact, as I was there in 1998 when HCFA (i.e., the Healthcare Finance Administration – CMS’ prior name) proposed and finalized a rule to implement a Surety Bond requirement in HH. This was during the cost-based era of reimbursement and these costs were going to be non-allowable as a Medicare-related costs. Without going too deep into the issue, this would have bankrupted 1,000s of agencies in just a few years. This was proposed in my first year in the industry (after having been a Medicare Auditor for 5-yrs) and I submitted comments to this Proposed Rule. Despite the industry outcry (although, there weren’t all that many comments submitted by the industry), HCFA finalized with the Surety Bond Provision pretty much as originally proposed. NAHC organized a march on Washington to protest and about 200 representatives from the industry were there to meet with their members of Congress, myself included.
We were broken into groups of 3 to 5 and went around all day meeting with various members from the House and Senate in our respective districts/states. My group’s first meeting was with a Senator from Mississippi and his healthcare aide. I was the only non-owner member in our group of 4. The owner’s spoke their displeasure for about 10 minutes, after which the Senator’s healthcare aide asked: “Did any of you submit comments to the Proposed Rule when you had the opportunity?” None of the four owners (of various HHAs) had and immediately went silent. After a moment I spoke up stating that I had, and I offered and gave a copy of my (12 or 17 pages of) comments to the Senator’s healthcare aide. The next 10 or so minutes of the discussion were between the Senator, his healthcare aide and myself as I articulated and summarized what my comments identified. The rest of the day, I was the lead speaker for whatever group I was in because I had submitted comments. There were about 20 or 30 other individuals there that day (approx. 10-15%) that submitted comments and I believe that we were the ones that turned the tide and convinced Congress to quickly enact legislation to strip all aspects of the Surety Bond Provision from that rule; and although HCFA/CMS has always toyed with trying to re-implement that provision, they have not tried it since.
Conclusion
It is because of my experience with the Surety Bond issue noted above as well as in the changes I have seen over the year’s between the Proposed to Final Rule that I am such a proponent of industry participation in the Rule-Making Process. Historically, the regular participants of the Rule-Making Process (and there are about 100/150 of us or so) are able to cobble together (for the most part independently) significant enough comments to get many (but certainly not all) of the more egregious proposals by CMS to be reduced and sometimes even eliminated. However, if industry participation in the Rule-Making Process increased in a significant way (and not via a ‘cut-and-paste’ approach), then I believe that we would be able to make an even more significant impact on CMS’ proposals and help tone down CMS’ aggressive actions/proposals against our industry.
This is an opportunity for members of and/or affiliated with the industry to truly advocate for the industry!