On October 6th, 2022, new federal rules from the Office of the National Coordinator (ONC) around data sharing and access went into effect for nearly all health care providers, including home health and hospice agencies. The regulations, known as “information blocking” rules, were required as part of 2016’s 21st Century Cures Act, and are intended…
Even though some providers have been living with the Health Insurance Portability and Accountability Act (HIPAA) requirements since 1996, there are still questions about whether an entity is covered and what all the requirements are. The Office of Civil Rights (OCR) administers HIPAA and has a webpage that contains resources specifically for health care professionals…
- Focus on Wage Index Cap, Payment Update, and Health Equity
On Wednesday, March 30, 2022, the Centers for Medicare & Medicaid Services (CMS) issued Medicare Program; FY 2023 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Requirements (https://www.federalregister.gov/public-inspection/2022-07030/medicare-program-fy-2023-hospice-wage-index-and-payment-rate-update-and-hospice-quality-reporting), the proposed rule governing hospice payment and other policies for fiscal year (FY) 2023. The rule included:
- A proposed 2.7% payment update for hospice services for the coming year;
- Proposed imposition of a permanent 5% cap on reductions in wage index values from one year to the next (a policy CMS is proposing for all Medicare institutional providers);
- A request for input on specific steps hospices are taking to advance health equity and views on creation of a structural composite measure that would assess a provider’s activities to address access to and quality of care for underserved populations;
- Updates on elements of the Hospice Quality Reporting Program (HQRP); and a
- An update on Advancing Health Information Exchange.
A NAHC Report summary of the rule is available here.
Since publication of the rule, the National Association for Home Care & Hospice (NAHC) solicited input from hospice members through numerous “listening sessions.” Following is a summary of NAHC’s comments on the rule that were submitted to CMS:
Proposed Permanent 5% Cap on Wage Index Decreases: Across the years when wage index values in a large number of geographic areas have undergone changes that could have a significant negative impact on provider payments, CMS has utilized various methods to limit the impact of those changes in the first year so that providers could prepare for the financial impact of the wage index changes. These methods include applying a 50/50 blend of the existing wage index value and the prospective wage index value for the first year or (as used during 2021) applying a 5% cap on wage index decreases for the first year in which changes to the wage index values are being applied. Given the potential that wage index changes have to create instability and significant negative impacts on certain providers even when wage index values change in only a small number of geographic areas, as part of the proposed FY2023 hospice payment rule CMS proposed a permanent approach to smooth year-to-year changes in providers’ wage indexes by placing a 5% cap on all wage index decreases in future years, regardless of the reason for the decrease. Under this change, a geographic area’s wage index would not be less than 95% of its wage index calculated in the prior FY. NAHC has had a long-standing policy position that CMS should develop and implement a wage index model that is consistent across all provider types so that all providers have a level playing field from which to compete for personnel, and that supports limiting wage index losses from year to year to minimize dramatic payment reductions due to wage index value changes.
NAHC’s comments support action by CMS to impose a permanent cap on losses due to wage index value declines but suggest that in addition to a 5% cap that CMS analyze the impact of imposing a smaller cap (such as 2% or 3%), provide the public with details of their findings, and impose the most appropriate cap value as part of final action. Based on their findings, CMS should determine and implement the most appropriate value for the cap on wage index decreases. NAHC also expressed concern that while CMS extended a FY2021 transitional policy imposing a 5% cap on wage index reductions to FY2022 for hospital providers but did not extend that policy to other provider types. NAHC is recommending that CMS retroactively apply the FY2021 transitional policy to hospice and other providers whose wage index values dropped more than 5% between 2021 and 2022.
Proposed FY2023 Hospice Payment Update Percentage
While CMS has limited discretion when calculating the annual market basket update for hospice providers, NAHC has concerns that the projected 2.7% update is insufficient to address the accelerating financial demands that hospices have faced over the course of the last three years. NAHC’s comments include a wide variety of issues that have resulted in financial strains for hospice providers, including:
- The Continuing COVID-19 Public Health Emergency
- Inflationary Pressures
- Workforce Issues
- Caregiver Burnout
- Increased Costs Related to Management Fees, Outsourcing, Recruitment, and Retention
- Reduced Productivity/Lost Revenue Related to Staff Turnover
- Resumption of the 2% Sequester
- Resumption of/Increased Regulatory Oversight
Based on these concerns, NAHC’s comments urge CMS to explore all options available to address the financial strains that providers are undergoing, including the following:
- Examine trends relative to IHS Global’s forecasts to determine whether more recently available data than used for the final FY2023 rule would result in a higher market basket update and determine whether additional updates could be made during the course of FY2023 to provide additional support to hospice and other providers.
- Direct various divisions of CMS to examine potential options for hospice regulatory relief, with a particular focus on policies that could help to address issues that contribute to the existing workforce crisis, including reductions in paperwork and more appropriate utilization of various clinical personnel.
- Engage stakeholders in discussions regarding current waivers and flexibilities related to the COVID-19 PHE, providers’ experience during the PHE relative to these waivers and flexibilities, and policy changes that might be advisable as a result of those experiences.
Updates on elements of the HQRP
While there were no proposed changes to the HQRP NAHC did submit some comments relative to elements of the program. The HOPE (Hospice Outcome and Patient Evaluation) tool is currently in beta testing which is expected to be completed later this year after which time CMS will complete its analysis. It is possible that CMS will include in next year’s proposed hospice rule the full implementation of the HOPE. Hospices and stakeholders such as EMR vendors are requesting CMS share more information about the HOPE prior to any future proposal for full implementation. NAHC also encouraged CMS to include race and ethnicity and SDOH in the HOPE and consider how the HOPE could be utilized as a tool to help hospices with health equity initiatives.
NAHC reiterated recommendations submitted previously urging CMS to develop codes or modifiers for telehealth visits in hospice and supports the recommendation by MedPAC that technology-based visits be reported on claims.
Advancing Health Equity
In this year’s proposed rule, CMS expanded on last year’s Request for Information (RFI) on health equity. This year, CMS sought feedback on four questions and a structural composite measure related to health equity. NAHC supports embedding the principles of health equity in the design, implementation, and operationalizing of policies and programs to improve health and reduce disparities for all people served by the Medicare program. In general, hospice readiness to develop and implement health equity initiatives varies greatly. Some hospices report that health equity concepts are new to their organization while others report collecting and analyzing data related to health equity for some time and using it as part of their performance improvement program. Consistent feedback from members indicates that there are hospices operating all along this spectrum and it is important for CMS to consider this variation as it looks to implement requirements and measures related to health equity. NAHC did explain in its comments that hospices are eager to implement health equity initiatives but have been impacted by the workforce shortage and other effects of the COVID-19 pandemic requiring a refocusing of priorities. Therefore, additional time and resources are necessary.
Social determinants of health (SDOH) and other data such as race and ethnicity need to be collected and analyzed for the advancement of health equity initiatives. However, our systems lack standardization for the collection, reporting and analysis of this data. NAHC encouraged CMS to expand its systems to allow for the submission of such data and for CMS to develop and share meaningful reports with this information for hospices that will help them move forward or expand.
NAHC’s comments support introducing a structural composite measure on health equity into the hospice quality reporting program. We believe such a measure is a good starting point for the HQRP and will help hospices learn what is expected and best practices. Dialogue with stakeholders about the development of a structural composite measure is necessary to ensure all components are included and the reporting of such a measure is meaningful while not being overly burdensome to hospice providers. We believe hospices must learn how to incorporate much of the health equity framework into their daily practice before data collection for a structural composite measure is considered. We provided feedback on each of the three domains CMS included as possible components of a structural measure and scoring of the domains. NAHC strongly recommended the utilization of a Technical Expert Panel (TEP) to consider the identification of appropriate measures and their implementation as was done with hospitals in the development of the “Hospital Commitment to Health Equity” measure. We also recommended that as the hospice measure is developed, data be gathered from hospices with feedback and learning opportunities provided to them before any public reporting is considered. NAHC emphasized that CMS should allow for adoption of health equity initiatives with hospices in a manner like that utilized with hospitals – slowly and over the course of years.
Finally, NAHC thanked CMS for its plans to utilize a TEP for the development and implementation of the Special Focus Program (SFP) that is part of the hospice survey reforms finalized last year. NAHC recommended that nomination opportunities to serve on the TEP be open to the public and that the proceedings of the TEP be as transparent as possible and include multidisciplinary and patient/caregiver perspective and that the TEP be charged with advising CMS on the details of implementation of the SFP, including the terms of selection, enforcement, and technical assistance criteria. Due to the complexity of the SFP and potential long-term impacts, this program should not be implemented until the TEP has completed its work in this area and has had the opportunity to consider SFP eligibility, use of other data for SFP eligibility, and SFP graduation.
Advancing Health Information Exchange
NAHC also took the opportunity to respond to the section of the rule highlighting the importance of interoperable health information exchange (HIE) across provider types and settings. NAHC staff reminded CMS that a major reason the majority of hospice and home health providers lack certified EHR technology is as a result of not being eligible for funding from the federal Meaningful Use EHR Incentive program created in 2009, a federal initiative that has provided billions of dollars over the last decade to hospitals, health systems, and physician practices to adopt and maintain Office of the National Coordinator for Health Information Technology (ONC)-certified health information technology (HIT). Not including hospices or other post-acute care (PAC) providers in that program has created an uneven playing field, one in which home-based care providers are further behind in their capacity to procure ONC-certified products which facilitate the kind of seamless interoperability CMS is seeking across the health care system. Special mention was made of how important it is for CMS to work with ONC and Congress to develop an analogous EHR/HIT incentive program for hospice and the PAC sector, particularly if they intend to make progress on their overarching goal to improve social determinant of health (SDOH) data collection and exchange. In order for SDOH information to be valuable, it will need to follow patients across care settings, making interoperability critically important. But merely providing the money to develop the data-sharing tools will not be sufficient to deliver on the health equity promise of more robust SDOH activity – CMS must also begin to articulate the specific expectations it has for providers related to the collection, storing, sharing, and use of SDOH data. In the absence of guidance, many providers are likely to create their own approaches to this work, which will hamper the ability to develop meaningful standards in the future that will help formalize CMS and ONC’s regulatory stance towards health care providers’ SDOH obligations and responsibilities.
Focus on Wage Index Cap, Payment Update, and Health Equity On Wednesday, March 30, 2022, the Centers for Medicare & Medicaid Services (CMS) issued Medicare Program; FY 2023 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Requirements (https://www.federalregister.gov/public-inspection/2022-07030/medicare-program-fy-2023-hospice-wage-index-and-payment-rate-update-and-hospice-quality-reporting), the proposed rule governing hospice payment and other policies for fiscal year (FY) 2023. The rule…
- Boosts HHS Funding & Extends Sequestration to 2023
On Monday, March 28th, President Biden released a $5.8 trillion proposed budget for fiscal year (FY) 2023, which begins October 1st, 2022. While the White House budget is simply a request and Congress has final say on government spending, it does provide a window into the president’s priorities and where his administration wants to direct its efforts going forward. As a reminder, lawmakers just this month finalized spending for the current fiscal year — which runs through Sept. 30 — and will soon begin negotiating funding legislation for FY2023.
The budget requests more than $127 billion to fund the Department of Health and Human Services (HHS) in FY2023, a roughly 15 percent spike from 2022 funding that includes major increases for pandemic preparedness and public health surveillance. Notably, the budget also would extend the Medicare sequester cuts by one year until 2032 (they were previously extended through 2031 by The Infrastructure Investment and Jobs Act of 2021), which would provide savings of around $7.6 billion.
Over the coming weeks members of the Executive Branch will be testifying before key committees in the House and Senate to provide additional detail around the recommendations put forth in the budget documents. As additional relevant detail is made available, it will be covered in NAHC Report.
Provisions of interest in the Budget include:
Multiple provider types:
- Extension of the Medicare sequestration provider rate cuts through 2032 (they are currently in place through 2031)
- Standardize Data Collection to Improve Quality and Promote Equitable Care: Current law requires post-acute providers (inpatient rehabilitation facilities, long-term care hospitals, skilled nursing facilities, and home health agencies) to report standardized patient assessment data on five health assessment categories, as well as “other categories deemed necessary and appropriate by the Secretary.” However, there is no express statutory requirement for data reporting on social determinants of health. This proposal would add a new category of standardized patient assessment data, “drivers of health”, for post-acute care providers. These data could include, for example, transportation, housing, social isolation, and food insecurity. This new data would enable real-time information exchange between the healthcare system and those resources best equipped to address individual needs—activating government, community agencies, and healthcare providers to work together to support individuals of underserved populations and be responsive to respond to public health needs.
Health Care Workforce
- Requests a total of $2.1 billion for numerous Health Resources and Services Administration (HRSA) workforce programs—including $430 million in mandatory and other sources of funding—an increase of $324 million above FY 2022 enacted, including additional investment to support the resiliency, mental health, and well-being of health care providers.
Program Integrity and Oversight Efforts:
- Requests $899 million in discretionary funding for the Health Care Fraud and Abuse Control (HCFAC) program, $26 million above the FY 2022 enacted level ($692.2 million for CMS; $109.6 million for the HHS OIG; $97.2 million for DOJ) (this would be on top of the $1.4 billion in mandatory HCFAC resources for FY 2023)
- Mentions that CMS would use some of this money to invest in new advancements in predictive modeling and artificial intelligence to enhance existing efforts to reduce improper payments, prevent fraud, and target bad actors, while limiting burden. For example, CMS is exploring methods of using machine learning to conduct more rapid review of chart documentation to improve payment accuracy.
- Mentions that a top priority for this increased investment is Medicare medical review, and that CMS has a long-term goal to increase the percentage of fee-for-service claims subject to medical review, which currently stands at less than one-tenth of one percent, to one percent.
- Prohibit Unsolicited Medicare Beneficiary Contacts: Since the start of the COVID-19 pandemic, Medicare scams have proliferated that utilize unsolicited contacts with Medicare beneficiaries for the purpose of ordering or rendering high-cost items and services, such as medically unnecessary laboratory testing and COVID-19 personal protective equipment, as well as to collect beneficiaries’ personal information. This proposal would disallow certain ordering or referring providers, home health agencies, laboratories, other providers and suppliers as identified by the Secretary, and other individuals or entities acting on behalf of such providers and suppliers from making certain unsolicited contacts with Medicare beneficiaries. Prohibited contacts would include phone calls, text messages, direct messaging applications, and e-mail. The proposal would also grant the Secretary authority to announce rulemaking to modify the parameters restricting unsolicited provider contacts with beneficiaries to address emerging fraud threats CMS identifies in the future.
- Expand Tools to Identify and Investigate Fraud in the Medicare Advantage Program: This proposal would require Medicare Advantage plans to collect referring provider identifiers for healthcare services and report this information as part of encounter data submissions to CMS. By requiring Medicare Advantage Organizations to collect key provider data to assist with investigations, this proposal would provide CMS and the HHS-OIG with improved capabilities to hold wrongdoers accountable. CMS would have improved capabilities to prevent program losses and beneficiary harm. Medicare Advantage Organizations would benefit from more actionable data in their own systems and the Federal Government’s broader visibility into fraud affecting multiple plans. This proposal would not require additional funding.
- Improving Equity in Medicare and Medicaid Programs: Requests $35 million for CMS to invest in a new initiative to systematically identify and resolve barriers to equity in each CMS program through research, data collection and analysis, stakeholder engagement, building upon rural health equity efforts, and technical assistance.
- Increase Social Security Administration Sharing and Collection of Race and Ethnicity Data for Medicare Beneficiaries: The primary source of race and ethnicity data on Medicare beneficiaries has been the Social Security Administration (SSA). Currently, SSA collects limited race and ethnicity data on some Medicare beneficiaries and does not collect any data on other beneficiaries, which hinders CMS’s ability to identify and reduce health disparities. The current collection of race and ethnicity data complies with certain 1997 OMB guidelines but does not comply with the more expansive 2011 HHS Data Standards that, for example, provide more detail on the diversity of Asian populations in the United States, such as Chinese, Vietnamese, and Filipino. This administrative proposal would have SSA increase sharing of race and ethnicity data with CMS for current and prospective Medicare beneficiaries, and consider expanding collection of detailed data, e.g., at 2011 HHS data standards or newer data standards. CMS will assist by conducting appropriate research and user testing for collection of this data to ensure it is useful for the purposes of tracking disparities in healthcare treatment and outcomes by race and ethnicity.
Surveys and Certifications (Medicare & Medicaid)
- Requests $494 million for Survey and Certification, an increase of $97 million or 24 percent above FY 2022 enacted. This investment will strengthen health, quality, and safety oversight for approximately 67,000 participating Medicare or Medicaid provider facilities. Survey workloads and costs continue to increase due to factors such as a growing number of beneficiaries and surveyor wage growth, as well as an increase in serious complaints against facilities, which can lead to costly ongoing enforcement activities once a deficiency is identified. The COVID-19 pandemic has underscored the Survey and Certification program’s critical oversight role for holding nursing homes and other facilities accountable to meet minimum infection control standards and protect public health for beneficiaries in these facilities from COVID-19.
- At the FY 2023 request level, CMS projects that states will have the resources to fully complete surveys for all provider types, including complaint surveys, statutorily required surveys, and non-statutory surveys. This level of survey completion, which has not been projected since the submission of the FY 2017 President’s Budget, would permit the program to provide oversight for the relevant facility types and is the first step in shifting from a reactive to proactive posture.
Department of Labor (DoL)
- Priorities for DoL Rulemaking: In FY 2023, the Occupational Safety & Health Administration (OSHA) is planning to publish five final rules, seven proposed rules, and complete one Small Business Regulatory Enforcement Fairness Act panel. The highest priorities among the rulemaking projects on the agency’s regulatory agenda include Infectious Disease, Workplace Violence, Hazard Communications, Personal Protective Equipment (PPE) Fit, and Heat Illness Prevention.
- Increased Funding for OSHA Inspections and Staff: An increased funding request of $27,876,000 to strengthen OSHA’s enforcement program. This includes funding to hire 179 Compliance Safety and Health Officers (CSHOs) to carry out front line compliance inspections. OSHA also plans to create 10 specialized technical CSHO positions to address highly technical inspections across the nation, such as process safety management, electrical safety, ergonomic hazards, combustible dust, and biohazards/infectious diseases, such as COVID-19. The Administration has previously stated its commitment to double the number of OSHA inspectors by the end of President Biden’s first term.
- Increased funding for DoL’s Wage and Hour Division (WHD) Enforcement: A $61 million increase for WHD’s budget to combat worker misclassification, protect essential workers by safeguarding their pay and recovering back wages, and more fully enforce rules around other areas such as prevailing wages and family and medical leave.
Health Information Technology
- The budget directs $52 million at the program level for the Office of the National Coordinator for Health Information Technology (ONC) towards improving standards to increase interoperability and equity among various health IT activities, in coordination with industry-led standards development organizations, as well as using the resources for fulfilling unmet legislative requirements.
- Improve CMS Analytic Capabilities and Data Sharing: As the largest payer for healthcare in the United States, CMS holds an enormous amount of unique health data on a large proportion of the U.S. population. The budget invests $15 million in a new initiative to improve the accessibility, timeliness, and comprehensiveness of CMS data made available to stakeholders and the public. This increase in funding will lead to greater analytic and data sharing capabilities while also continuing to safeguard individual privacy. Better, more timely use of these datasets holds the potential to strengthen the evaluation of federal and state programs, assess the impact of policy changes, improve outcomes of people served by multiple programs, and generate knowledge to inform federal and state policymaking.
- Enhancing HIPAA Protections by Increasing Civil Monetary Penalty Caps and Authorizing Injunctive Relief: The proposal seeks to increase the amount of civil money penalties that can be imposed in a calendar year for HIPAA non-compliance and authorizes OCR to work with the U.S. Department of Justice to seek injunctive relief in federal court for HIPAA violations.
Administration for Community Living (Funding for aging and disability community-based-organizations)
- Provides $3.1 billion for ACL, an increase of $668 million above FY 2022 enacted. The budget recognizes the significantly increased demand for critical services caused by growing populations and the long-term effects of the COVID-19 pandemic.
- In FY 2023, the budget provides $266 million, an increase of $61 million above FY 2022 enacted, for the Family Caregivers and Native American Caregiver Support programs, and nearly doubles funding, from $8 million to $14 million, for the Lifespan Respite Care program. These programs provide more than 1.5 million caregivers counseling, training, respite care, and other coordinated services to allow them to support their loved ones while maintaining their own health and well-being.
Mental Health Care
- Improve access to Medicare mental health services by allowing Licensed Professional Counselors and Marriage and Family Therapists to directly bill Medicare for their services; removing limits on the scope of services for which Clinical Social Workers, Licensed Professional Counselors, and Marriage and Family Therapists can be paid by Medicare; allow these practitioners to bill Medicare directly for their mental health services for covered Part A qualifying Skilled Nursing Facility stays; establish Medicare payment under Part B for services provided under an Assertive Community Treatment delivery system; allow payment to Rural Health Clinics and Federally Qualified Health Centers for Licensed Professional Counselors and Marriage and Family Therapists providing mental health services; and enable Medicare coverage of evidence-based digital applications and platforms that facilitate the delivery of mental health services.
Community Health Workers:
- Add Medicare Coverage of Services Furnished by Community Health Workers: Under current law, services provided by community health workers are not paid under Medicare. This proposal would provide coverage and reimbursement to community health workers acting within the scope of their license or certification under Medicare’s Physician Fee Schedule for select, evidence-based preventive, chronic, and behavioral care management services, as well as certain social determinants of health evaluation and navigation services, effective CY 2024. Such services would be exempt from Medicare cost-sharing. Services must be furnished under the direction of—and billed by—a Medicare-enrolled supplier or provider in accordance with a comprehensive community needs assessment and engagement plan. In addition to existing Medicare providers, the Secretary would be permitted to enroll community-based organizations (e.g., non-profits, public health departments, etc.) as community health worker suppliers to broaden access to services, subject to program integrity and patient safety guardrails.
Agency for Healthcare Research and Quality (AHRQ)
- All-Payer Claims Database: Provides $5 million to develop the infrastructure to regularly create and disseminate an All-Payers Claims Database. AHRQ will partner with states and other data holders to create a framework for a secure claims database that will enhance value to individual participating states and provide analytics to federal policy makers to inform decision making, address equity issues, and improve healthcare quality.
- Telehealth Centers for Excellence: The establishment of two Centers of Excellence in Telehealth Implementation. These centers will play a role in evaluating the effects of telehealth on healthcare delivery and health outcomes to ensure the promise of telehealth is delivered through evidence-based practice and policy. This work is especially important given the rapid expansion of telehealth during the COVID-19 pandemic, which created both historic opportunities and unique challenges. With this unprecedented rapid expansion of telehealth, it is important to understand telehealth’s effect on key health policy priorities and thoroughly evaluate the effect of the telehealth on healthcare quality, safety, equity, access, utilization, and value.
Boosts HHS Funding & Extends Sequestration to 2023 On Monday, March 28th, President Biden released a $5.8 trillion proposed budget for fiscal year (FY) 2023, which begins October 1st, 2022. While the White House budget is simply a request and Congress has final say on government spending, it does provide a window into the president’s…
The Office of the National Coordinator for Health Information Technology (ONC) and the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services are hosting a new webinar for users of the Security Risk Assessment Tool. Learn about the SRA Tool and how it can be used at your organization, hear…
The Centers for Medicare & Medicaid Services (CMS) issued a proposed rule on Thursday, December 10, intended to improve the electronic exchange of health care data among payers, providers, and patients, and streamline processes related to prior authorization to reduce burden on providers and patients. According to CMS, the proposed rule aims to improve data sharing…
The U.S. Department of Health and Human Services’ (HHS) Office of the National Coordinator for Health IT (ONC) released an interim final rule with comment period that extends the compliance dates and timeframes necessary to meet certain requirements related to information blocking and Conditions and Maintenance of Certification (CoC/MoC) requirements issued in the ONC’s Cures…
The Department of Health and Human Services (HHS), Office of Inspector General (OIG) has issued a proposed rule to incorporate new authorities for civil monetary penalties (CMPs), assessments, and exclusions related to HHS grants, contracts, other agreements; new CMP authorities for information blocking; and increase the maximum penalties for certain CMP violations The Centers for…