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August 26, 2016

Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-1648-P
P.O. Box 8016
Baltimore, Maryland  21244-8016

Submitted electronically to:

Re:      Federal Register Volume 81 No. 128

Medicare and Medicaid Programs: CY 2017 Home Health Prospective Payment System Rate Update; Home Health Value-Based Purchasing Model; and Home Health Quality Reporting Requirements

The Center for Medicare Advocacy (Center) is pleased to provide these comments regarding proposed revisions to 42 CFR Parts 409 and 484. The Center, founded in 1986, is a national, non-partisan law organization that works to ensure fair access to Medicare and quality healthcare.  The staff of the Center provides education, legal assistance, research and analysis on behalf of older people and people with disabilities, particularly those with long-term conditions.  The Center’s health policy positions are based on its experience of assisting thousands of individuals and their families with Medicare coverage and appeal issues. Additionally, when necessary, the Center provides beneficiaries with individual and class action representation to address broad patterns and practices that inappropriately deny access to Medicare and necessary care.

As overarching comments, the Center has significant concerns that the proposed changes will result in drastically reduced access to Medicare home health care coverage for beneficiaries, particularly those who are clinically complex or who have poorly controlled chronic conditions. We are also deeply concerned about and urge reconsideration of the proposed measure set for the Home Health Value Based Purchasing (HHVBP) Model and Quality Reporting which is largely based on an illegal improvement standard and is contrary to the Jimmo v. Sebelius settlement. (CA No. 5:11-CV-17-CR; 10/16/2012.) Contrary to CMS’ stated desire that the HHVBP Model will improve the quality and delivery of home health care services to Medicare beneficiaries the Model will actually bar home health access to vulnerable people who will never “improve,” but who require skilled care to maintain their conditions or slow/prevent further deterioration.

Comments by Section:

III. Proposed provisions of the Home Health Prospective Payment System

A.     Monitoring for Potential Impacts – Affordable Care Act Rebasing Adjustments

A home health study required by section 3131(d) of the Affordable Care Act suggests that the current home health system may discourage HHAs from serving patients with clinically complex and/or chronic conditions (FR 43721).

There has been a significant shift in Average Number of [HH] Visits by Discipline Type (Figure 2). For example, the average home health aide visit per episode in 2001 was almost 6, but by 2015, it was down to 2 visits per episode. This is one of many suggestive indicators (see remainder of these comments) that changes in payment mechanisms are already creating barriers to necessary Medicare home health care access for many beneficiaries, particularly those with long-term chronic conditions. The proposed rules will worsen this situation.

CMS’ 2015 decision, to decrease case-mix weights for the third and later episodes of care with 0 to 19 therapy visits due to the CY 2105 recalibration of the case-mix weights (FR 43722), is contrary to Medicare coverage law. The home health benefit is to be based on the beneficiary’s individual condition and is not limited in time so long as coverage criteria are met. 42 C.F.R. 409.44. Yet, a decrease in case-mix weights for later episodes creates broad-based, practical access problems to HHAs for those who legally qualify for Medicare’s home health benefits.

B.     Proposed CY 2017 HH PPS Case-Mix Weights

HH PPS case-mix weights are adjusted relative to one another (FR 43724). “Annual recalibration of the HH PPS case-mix weights ensures that the case-mix weights reflect, as accurately as possible, current home health resource use and changes in utilization patterns.” (Id.) Unfortunately, current home health resource use does not accurately reflect what the resource use should be and Medicare law provides. Under this payment structure, patients with clinically complex and long-term chronic conditions are often either unable to gain access to legally covered care, or they are provided with limited care relative to what their plan of care orders or their OASIS indicates they should receive. This results in the home health payment tail wagging the home health coverage dog, resulting in a self-fulfilling prophecy of discriminatory, limited access to care.

D.  Payments for High-Cost Outliers Under the HH PPS

There is logic to the proposition that changing from the current cost-per-visit methodology to the proposed cost-per-unit methodology would result in more accurate outlier payments (FR 43740). It is, however, too narrow a basis to equate more time spent to more “intense” care as a sole factor. Many beneficiaries with complex chronic care needs require more frequent “intense” quality, less “intense” time needs (for example, monitoring of per-se skilled service needs). These beneficiaries will be denied even more access to care than they already experience under the proposed payment system.

The predicted outcomes of Table 26 will effectively remove the little access to care that many people with complex chronic care needs currently have to the Medicare home health benefit. For those HHAs that provide the most outlier care services, Table 26 shows average minutes per visit jumping from 27.5 to 104.5 to receive outlier payments under the proposed methodology. This outrageously inflationary increase drives the fixed dollar loss ratio increase from the current .45 to .56 in CY 2017, an almost 25% increase. It means substantially less cases that qualify for the outlier payments and substantially more barriers to care for those who need it most.

The Center urges a reconsideration of the proposed payment structure to ensure the most vulnerable populations, those who should benefit from the outlier provision, are not further harmed. The Center also requests that any change, such as the change from per visit to per unit, be monitored closely and the FDL ratio properly adjusted in an expeditious manner. All changes should be reviewed in light of the populations who will be effectively shut-out of home health care by the limited allowances for outliers in the program.

The proposed rules state, “…certain subgroups identified in the home health study may benefit from the change from the current outlier methodology to the proposed outlier methodology.” (FR 43740). Clearly not all subgroups will benefit from the change. The methodology appears to disregard entire “subgroups” that require brief but frequent care. It also appears to create an incentive for visits to last longer, even if they are not required. Access to care for some “subgroups” is already impeded, is not captured in utilization data, and will be further eroded by this narrow proposal.

Given the discriminatory direction of this proposed rule, it is reasonable to ask – what home health agency will take on any patients with complex care, long-term needs and/or chronic conditions that are covered by the Medicare law? We fear the answer is “very few.”

Further, the unfortunate construct of capping every home health agency at 10% outlier payments means that few agencies have the ability to hire staff with expertise in serving more complex patients. Most agencies will never serve the most complex, the most vulnerable. For the few that will, they reach their 10% outlier cap so quickly that they are unable to serve more outliers. The Center’s work with one individual in Oklahoma illustrates this point. 46 home health agencies were contacted to help this individual living with ALS. 44 said they were not staffed to provide services. Only two said they were willing to have a conversation about providing a fraction of the home health care that her doctor ordered. The doctor’s plan of care was well within Medicare’s allowable service coverage.

F. Update on Subsequent Research and Analysis Related to Section 3131(d) of the Affordable Care Act

The Center does not object, in theory, to the proposed rule changing the HH PPS case-mix methodology to Home Health Groupings Model (HHGM) as grouped by primary diagnosis. Categorizing the sub-groups within the five delineated categories, however, is concerning.

The timing category seems to indicate that there is a distinction between “early” episodes (episodes 1 or 2) and “late” episodes (episodes 3 and beyond). This may or may not be true. Some people may improve with time and need less services. Some people, however, by virtue of their condition or diagnosis, may not be expected to improve but do still have a need for skilled care. In fact, they may need more services as their condition progresses. The timing category should only allow for payments to decrease – or increase – over time as accurate care needs are identified based on the individual’s particular condition.

Caution is also advised in application of the “referral source” category. A beneficiary’s care should be based on clinical diagnosis and need for services. No payment incentives, or disincentives, should drive home health delivery determinations, and therefore access to care, based on the referral source.

The HHGM, unlike the current payment model, does not rely on the number of therapy visits performed to influence payment. (FR 43744). The Center has concerns that this may result in an incentive to provide less than necessary therapy. Any such change that may dis-incentivize home health agencies from providing services must be monitored for decreases in access to appropriate care.

FF. Update on Future Plans to Group HH PPS Claims Centrally During Claims Processing

The Center supports the potential enhancement as described. This proposed enhancement appears to provide for more accurate data (albeit the Center’s concerns that entire beneficiary sub-groups are currently alarmingly underserved), more potential resources for beneficiaries, and reduction in errors. The latter also decreases the potential that legitimate claims will be falsely identified as fraudulent.

IV. Proposed Provisions of the Home Health Value-Based Purchasing (HHVBP) Model

A.    2. The Payment Adjustment Methodology

The HHVBP has and will have the unintended consequence of producing a chilling effect on access to home health care for beneficiaries who are in need of skilled care but are not able to improve. Quality measures overwhelmingly based on an illegal improvement standard does a disservice to the intended goals of the Model and leaves the most vulnerable beneficiaries effectively shut-out of access to Medicare home health care. The current benchmarks cannot be allowed to stand. Already home health agencies are turning away patients who they identify will not improve, and therefore will create “penalties” to their Medicare reimbursement. Whether the measures are required at a state, local, or other level, as the proposed rule suggests, is beside the point: The measures do not accurately or fairly reflect the needs and care of the Medicare population. Accurate cohort benchmarks, those that include a way of measuring goals achieved for those who will never “improve” but require covered, skilled care to maintain or slow decline, must be developed and properly instituted with no discriminatory disincentives. To do otherwise violates Medicare law and the Jimmo v. Sebelius Settlement.

E. Public Display of Total Performance Scores for the HHVBP Model

While transparency of accurate data is usually to be applauded, transparency of mis-information is misleading to beneficiaries. Before the Model is expanded beyond the nine states where it has been tested, it must be revised. Unfortunately, the current HHVBP Model provides a system that equates poor quality service with serving people who are not improving, not expected, or unable, to improve. Home health agencies with the important mission to serve all who need skilled care, including those with long-term and debilitating conditions, are penalized by the current and proposed Models that reward only those agencies that help people whose conditions can improve. This is in complete disregard of Jimmo v. Sebelius and Medicare law and cannot continue, let alone be built upon.

By way of example, the Center recently dealt with a home health agency that not only declined to serve a beneficiary with a debilitating condition, but also said that Medicare required it to wait until she declined and then see if it could help her “improve.” This is an example of a consequence of the current HHVBP Model that judges quality based on improvement; it must be fixed before it causes more harm and discrimination.

V. Proposed Updates to the Home Health Care Quality Reporting Program (HH QRP)

B.     General Considerations Used for the Selection of Quality Measures for the HH QRP

The proposed rules state that quality measures fundamental to QRPs must be valid, reliable, and relevant. (FR 43757). The Center is in full agreement with those goals. The criteria identified to achieve those goals, however, falls far short of producing valid data when results hinge on criteria for patient “improvement.” Medicare must provide legally appropriate coverage. It must provide, and measure, quality care for people who need skilled care to maintain their function, not just for those who need it to improve.

C.     Process for Retaining, Removing and Replacing Previously Adopted Home Health Quality Reporting Program Measures for Subsequent Payment Determinations

The proposed rules state that when “performance or improvement on a measure does not result in better patient outcomes” a quality measure will be considered for removal from HH Compare. (FR 43758). The Center is concerned about what defines “better outcomes” and how home health agencies perceive what CMS believes about “better outcomes.” As goals on a home health plan of care must be defined, “better outcomes” as they relate to goals, should be communicated to the home health agencies appropriately or, once again, “better outcomes” will equate to improvement.  Skilled care to maintain an individual’s condition or slow decline must also be valued and considered a legitimate, important outcome.

Section (5) states, “a measure that is more proximal in time to desired patient outcomes for the particular topic is available”. (FR 43758) The word “topic” in this context, appears to refer to a person’s diagnosis. Please clarify “topic” in the correct context.

D.    Proposed Process for Adoption of Updates to HH QRP Measures

Socioeconomic and demographic factors should be used in risk adjustment for the resource use measures. (FR 43759). CMS should include weighted standards to maximize incentives for home health service where there are disparities in populations, socioeconomic, demographic and those with chronic care and long term needs.

2. Proposal to Address the IMPACT Act Domain of Resource Use and Other Measures: Discharge to Community-Post Acute Care Home Health Quality Reporting Program

The Center strongly objects to the “Discharge to Community” proposed measure. (FR 43764).

“This proposed measure assesses successful discharge to the community from a HH setting, with successful discharge to the community including no unplanned hospitalizations and no deaths in the 31 days following discharge from HH agency setting.” This measure seems to suggest that a beneficiary will not be allowed to die at home without invoking the hospice benefit. Further, if a beneficiary is seen to be “dying” by the agency, the agency will have an incentive to discharge the beneficiary from services to avoid the 31 days-before-death penalty.

The further statement in the proposed rules that attempts to justify an incentive to remove people from home health care, and discharge them into the community, seems to be telling beneficiaries they should somehow recover on their own or not waste systemic resources if they are not expected to improve. “Discharge to a community setting is an important health care outcome for many patients for whom the overall goals of post-acute care include optimizing functional improvement returning to a previous level of independence and avoiding institutionalization. Returning to the community is also an important outcome for many patients who are not expected to make functional improvement during their home health episode and for patients who are expected to decline functionally due to their medical condition.” (FR 43764). This statement, should be rescinded and the proposition underlying it should not be implemented.

Medicare home health care can be a long-term benefit. It has no duration of time limitation if coverage criteria are met. Indeed, Congress removed a visit limitation in 1980. The proposed rules incorrectly leave Medicare out of the following statement: “[F]or patients who require long-term care due to persistent disability, discharge to community could result in longer long-term care costs for Medicaid and for patient’s out-of-pocket expenditures.” (FR 43764-5).


The proposed rules exacerbate the current trajectory to significantly limit access to home health care for Medicare beneficiaries who require skilled care to maintain their conditions and/or have chronic and long-term conditions. Value based payments and quality outcome measures continue to illegally require home health agencies to achieve improvements. This discriminates against those who need skilled care but are not able to improve.  Further, penalizing home health agencies who allow non-hospice patients to die in their home with care until the end of life is egregious.

We appreciate the opportunity to submit these comments.  Thank you for considering them, on behalf of all those who have the legal right and critical need to access Medicare-covered home health services, and all those who care for them.

For additional information, please contact attorney Kathleen Holt, Associate Director, at or 860-456-7790.


Kathleen Holt, M.B.A, J.D.
Associate Director/Attorney

Judith Stein, J.D.
Executive Director/Attorney

On Behalf Of :

All About You Collaborative Health Care Services LLC
Justice in Aging
Kansas Advocates for Better Care
Kornetti & Krafft Health Care Solutions
Long Term Care Community Coalition
Massachusetts Advocates for Nursing Home Reform
National Consumer Voice for Long Term Care
National Multiple Sclerosis Society
Our Mother’s Voice
Senior Citizens Law Office
Team Gleason
Wisconsin Manufactured Housing Association
Thomas Murphy (Caregiver)
Juliette Hare O'Connor (Caregiver)
Darlena Embry (Caregiver)
Mary Ellen Woodman (Caregiver)

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