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September 25, 2017

Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-1672-P
P.O. Box 8016
Baltimore, Maryland  21244-8016

Submitted electronically to:

Re:      Federal Register Volume 82 No. 144

Medicare and Medicaid Programs: CY 2018 Home Health Prospective Payment System Rate Update and Proposed CY 2019 Case-Mix Adjustment Methodology Refinements; 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-profit 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 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.

The proposed home health rule strives “[t]o advance the goals of better aligning payment with patient needs, as well as addressing payment incentives and vulnerabilities within the current system.” (FR 35307)

The Center agrees with the proposed rule that the current payment system is not aligned with patient needs. However, we urge CMS to exercise caution before continuing to impose rebasing case-mix adjustments that are severely skewed by “usage data” that does not accurately represent patient needs. The Center respectfully requests CMS to develop payment and quality measure systems that result in “neutral margins” for providers so that all beneficiaries who need, and qualify for, Medicare home health care have an equal opportunity to obtain services.

As overarching comments, the Center has significant concerns that the proposed changes will result in drastically reduced access to Medicare home health coverage and care for beneficiaries, particularly those who are clinically complex or who have ongoing skilled care needs. The Center urges CMS not to implement the proposed rule without further consideration of the entire impact of payment and quality programs, and the revised home health Conditions of Participation (COP)(effective January 1, 2018) that, taken together, highly influence provider delivery of care.

Past and current provider behavior, based on payment models, quality measures, and conditions of participation, has left many beneficiaries with little or no access to care, particularly for people who are clinically complex or have chronic conditions. Many of the non-profit home health agencies (HHAs) that served vulnerable populations have been driven from the provider market since 2001, when the Home Health Prospective Payment System (HH PPS) was implemented. The fact that 90% of HH agencies are now proprietary means that funding models and quality measurements significantly influence the delivery of care. The proposed rule will further exacerbate the current crisis in Medicare beneficiary access to home health care.

The Center agrees with CMS’s statement that “[t]he primary goal of home health care is to provide restorative care when improvement is expected, maintain function and health status if improvement is not expected, slow the rate of functional decline to avoid institutionalization in an acute or post-acute care setting, and/or facilitate transition to end-of-life care as appropriate.”  Federal Register (FR) 35348. This primary goal should remain central to all CMS rules and proposed rules.

The Center respectfully requests that CMS slow down implementation of the current proposed rule, place Medicare beneficiaries and law at the center of the discussion, and reconsider the collective impact of all payment rules, quality measures, and participation requirements.

Comments by Section of the Proposed Rules:

I.Executive Summary

The proposed rule would update the case-mix weights to account for case-mix growth between CY 2012 and CY 2014, change units of payment from 60 to 30 days, and change requirements for Home Health Value Based Purchasing (HHVBP) and the Home Health Quality Reporting Program (HH QRP).

The CY 2012 and CY 2014 case-mix growth is not based on an accurate representation of services needed by beneficiaries who qualify for Medicare home health care benefits. Since the advent of the HH PPS in 2001, delivery of care by home health agencies has not been based on the needs of beneficiaries who qualify for care, but rather on the maximization of the most profitable case-mix. The intent of HH PPS was to create a payment program in which all who qualified for care would be able to access services, because more profitable patients would “balance out” less profitable patients. Unfortunately, in practice HH PPS drove most providers directly to profitable cases and reduced or denied access to care for less profitable cases. Since HH PPS was implemented, many non-profit home care agencies have closed their doors, merged with larger providers, or survived by serving the more profitable cases. The fact that 90% of all home health agencies today are proprietary confirms this trend and makes the future of access bleak for a growing number of beneficiaries who qualify for the Medicare home health care benefit but are not “profitable” for HHAs.

Between 1997 and 2000, home health visits fell by 65%. The reduction was said to be based on programmatic integrity actions. Starting with a benefit “cleared” of fraud and waste, HH PPS was implemented. Medicare coverage laws have not changed since HH PPS began, yet home health aide visits declined 62% from 2000 to 2014. During that same time period, therapy visits increased 85%. These statistical swings can be largely attributed to the behavior of providers to maximize profits, driven by HH PPS, rather than because of a significant change in patient care needs. Further, since Medicare home health conditions of participation do not require providers to accept patients, home health agencies pick and choose the patients they will serve. Having “access” to home health agencies does not mean beneficiaries have access to services. The intent of HH PPS, to “balance” out the less profitable beneficiary cases with the more profitable cases, did not happen. Case-mix results were based on provider behaviors and did not properly reflect the needs of many beneficiaries. More and more patients are denied access to benefits for which they qualify under the law.

The impact of HHVBP and HH QRM (Quality Reporting Measure) programs further devastates access to home health benefits for vulnerable patients, those most likely to be institutionalized if not properly cared for at home. HHVBP and HH QRM programs have exponentially compounded PPS case-mix problems by effectively denying access to home health benefits for many beneficiaries, particularly those with chronic conditions. HHVBP, effective 2016, will financially reward or penalize providers (between +8% and -8% by 2022) based largely on whether a patient will improve in the course of home health care. HH QRM also measures patient improvements in awarding quality star ratings based on provider services.

Even if the CY 2012 and CY 2014 case-mix results were not skewed by usage data, those results only show care that was delivered (and not care that was actually needed by many of those who qualify for the benefit). Further, corrective factors would need to be applied by CMS to compensate for the impact of the Jimmo Settlement on CY 2012 and CY 2014 case-mix results. Adding to this, the HHVBP and HH QRM disincentives for agencies to serve individuals with chronic care needs produce insurmountable obstacles to access. The proposed Home Health Groupings Model (HHGM) would further exacerbate these barriers to access.

II.        Background

B. Current System for Payment of Home Health Services

Section 3131(a) of the Affordable Care Act requires that, beginning in CY 2014, CMS apply an adjustment to the national, standardized 60-day episode rate and other amounts that reflect factors such as changes in the number of visits in an episode, the mix of services in an episode the level of intensity of services in an episode, the average cost of providing care per episode, and other relevant factors. Rebasing adjustments are to be phased in by CY 2017.

By 2014, factors such as changes in the number of visits in an episode, the mix of services in an episode, and the level of intensity of services in an episode represented provider calculated profit margins under HH PPS rather than patient needs for services. Home health aide visits had declined by 62% between 2000 and 2014, therapy visits had increased by 85%. Rebasing adjustments were based on provider driven utilization and did not accurately reflect patient service needs.

D. Report to Congress: Home Health Study on Access to Care for Vulnerable Patient Populations and Subsequent Research and Analysis

The Congressional Report found that payment accuracy could be improved for patients with clinical characteristics requiring more nursing care than therapy. The Report emphasized results of a survey that included participation by providers of care but did not include any input from beneficiaries or beneficiary advocates. The survey declared access to home health care to be excellent or good. Less than 18% of home health agencies and physicians reported payment as an important contributing factor in the ability to admit or place patients. 64% of home health agencies responded that patients did not qualify for the benefit.

The Center disagrees with the report. Physicians often compromise by reducing the care they order to accept the care HHAs say they can provide. Many HHAs, and (as the Center has heard time and time again) Medicare Contractors, do not understand home care benefits as provided by Medicare law. Most of the “vulnerable patient populations” covered by the Congressional Report were also represented by the Jimmo Settlement and were not considered in the analysis of the 2014 Congressional Report.

The Congressional Report examined situations where there were low margin levels in the case-mix – for example, those who were admitted to home care after an institutional stay. The Report correctly determined that the cost of care for many with intense rehab needs is greatest upon admission to home care. While we understand the need for intense care at the start of home care services for some patients, the proposed rule focuses on those in need of more intense care after an institutional stay to the detriment of individuals with chronic conditions. Because the case-mix has been skewed away from those with chronic conditions since 2000, and with the HHGM focus on those admitted to home health care from institutions, access to home care for people with chronic conditions will become even more difficult than it already is.

Vulnerable patient populations were not only misrepresented by the Congressional Report, access to their care was further eroded by the ongoing HH PPS system, more recent HHVBP rules, and HH QRM. The HHGM would further jeopardize access to care for the same individuals by creating a payment system that favors short-term care via an “early” payment, defined as 30 days reduced from the current 120 days, and a new admittance policy that favors institutionalized care, regardless of a patient’s actual home care requirements.

The Center believes that payment “accuracy” should continuously be evaluated and improved, but, most importantly, all payment policies should strive to provide an equal opportunity for all patients who qualify to get care. CMS should not suggest to HHAs and patients, as current and proposed payment and quality rules do, that some beneficiaries are more worthy of care than others.

The Congressional Report raised concerns about the use of therapy thresholds in the current payment system. The proposed rule states, “Figure 1 suggests that HHAs may be responding to financial incentives in the home health payment system when making care plan decisions.” For some time the Center for Medicare Advocacy has been reporting to CMS that there are significant access problems created by past and current financial incentives. The use of therapy thresholds is a good example of how provider behavior and service delivery (not service need) has been driven by HH PPS. CMS’s intention, to create a balanced payment system in 2000, has not worked.

Adding provider incentives like HHVBP and HH QRM has made beneficiary access to home health care significantly worse. It is a mistake to think that removing therapy thresholds will fix the complex payment and quality measurement problems which will soon be further compounded by new conditions of participation. Further, the anticipated impact of the new proposed rule, together with existing payment and quality rules, are in conflict with Medicare law.

Finally, especially in light of the Jimmo Settlement, “patient well-being” and “patient-focused approach,” as defined by CMS in the proposed rule, should not equate to improvement, but equally to maintaining the condition and well-being of every patient who qualifies for care. If CMS seeks to “improve payment accuracy and access for medically complex cases”, as the proposed rule professes, changing to a shorter billing cycle and eliminating therapy thresholds will not come close to accomplishing those ends. The Center respectfully requests CMS to re-visit the current laws and coverage policies, establish new margin-neutral goals, and develop the best approaches to achieve those goals to create fair access to the home health benefit.

II.Provisions of the Proposed Rule: Payment Under the Home Health Prospective

Payment System (HH PPS)

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

1.Analysis of FY 2015 HHA Cost Report Data

Payments for Medicare home health care in CY 2015 exceeded costs by 21%. This should come as no surprise, based on a PPS system that has driven the home health industry to become 90% proprietary home health ownership with incentives to choose the most profitable cases, leaving the most vulnerable and greatest-need patients with little or no access. Punishing HHAs by removing almost a billion dollars from the home health industry in 2019 will only further harm beneficiaries who have not been treated equitably from the beginning of PPS.

2.Analysis of FY 2016 HHA Claims Data

In the analysis of Medicare home health and PPS, it is a misnomer to continue referring to those in traditional Medicare as “fee for service beneficiaries”, since fee for service (FFS) in home health care was eliminated with the introduction of PPS. Further, as payments made by Medicare Advantage (MA) plans to home health agencies are so woefully inadequate, agencies who accept MA patients are forced to subsidize MA care on the backs of non-MA Medicare patients. MA plans should pay their fair share of costs.

The proposed rule states that rebasing adjustments made to HH PPS payment rates in CYs 2014 through 2016 do not appear to have resulted in significant HHA closures or otherwise diminished access to home health services. Statistics from 2000 up until 2014 show that the majority of the closures and damage to patient access had already been done by this time. Using 2014 through 2016 rebasing as a benchmark does not mean home health access is not in significant crisis. The proposed rule will further this crisis.

As the proposed rule states, the average total number of visits in a 60-day episode of care declined, most notably between CY 2009 and CY 2010, which was the first year that CMS implemented the 10 percent agency-level cap on HHA outlier payments. This policy eliminated the possibility that an agency with expertise working with low functioning people and people with chronic illnesses and injuries would be able to continue serving patients in that capacity. Access to Medicare benefits for these vulnerable patients was further diminished.

The proposed rule cites MedPAC conclusions that “there has been tremendous growth in the use of home health for patients residing in the community, episodes not preceded by a prior hospitalization. The high rates of volume growth for these types of episodes, which have more than doubled since 2001, suggest there is significant potential for overuse, particularly since Medicare does not currently require any cost sharing for home health care.” (FR 35281)

There are many variables affecting community admission that MedPAC does not appear to have considered – not the least of these is a deliberate Medicare and public health effort to keep patients out of the hospital. Additional programmatic integrity protections, such as face-to-face visits with a physician to confirm necessary care, have been established. Many procedures have changed from inpatient-based to community-based since 2001. For example, many individuals who would have been hospitalized for procedures such as knee-replacements are now receiving those services in outpatient facilities or physician offices. Why would the proposed rule create incentives for beneficiaries to enter institutions in order to gain practical access to home care? Congress removed the prior hospital stay requirement for home health benefits in 1980. Penalizing individuals admitted from the community would be a step backward in a direction that Congress explicitly precluded in 1980.

III.Provisions of the Proposed Rule: Payment Under the Home Health Prospective Payment System (HH PPS)

B.Proposed CY 2018 PPS Case Mix Weights

Step 1: Recalibration of the HH PPS case-mix weights, according to the proposed rule, “utilize the most current, complete data available” to reflect “current home health resources use and changes in utilization patterns.” (FR 35282)

As discussed previously, unfortunately, HH PPS utilization patterns reflect care delivery patterns that have been skewed by HHA payment and quality measure incentives, and not patient care needs. The skewed data is not reflective of the patients who qualify for care but have been denied access to necessary services. Every year that passes skews usage data further away from actual needs of those who qualify for coverage and need care.

Step 2: The proposed rule states, “We then divide the distribution of the clinical score for episodes within a step such that a third of episodes are classified as low clinical score, a third of episodes are classified as medium score, and a third of episodes are classified as high clinical score. The same approach is then done looking at the functional score. It was not always possible to evenly divide the episodes within each step into thirds due to many episodes being clustered around one particular score. Also, we looked at the average resource use associated with each clinical and functional score and used that as a guide for setting our thresholds.” (FR 35284).

As most HHAs have accepted only the most profitable cases, a reliable method of understanding how resource use should be guided by resources provided, is no longer available. The proposed rule, concerned with over-valued therapy usage, only serves to compound the problems of access to care, not resolve them. 

Further, while the Center appreciates that CMS is seeking to find an accurate methodology to properly serve millions of beneficiaries, it is unclear why the equations are reduced to clinical and functional scores that are capable only of reflecting “low, medium, or high” categories. Using technology available today, along with individualized assessments to accurately reflect patient needs, a true picture of actual care that is needed would emerge that is along a continuum from low to high rather than shoehorning people’s needs into only three categories.

The Center respectfully requests that CMS develop clinically and functionally meaningful payment categories. In order to do so, CMS should suspend implementation of the proposed rule, place Medicare laws front and center in the discussion, include all stakeholders, and determine the best approach to move forward in creating a margin neutral benefit that allows all beneficiaries who qualify for services to obtain necessary care.

III.E.   Proposed Implementation of the Home Health Groupings Model (HHGM) for CY 2019

1.Overview, Data and File Construction

The Center for Medicare Advocacy supports CMS’s stated goal, “to better align payment with patient care needs and better ensure that clinically complex and ill beneficiaries have adequate access to home health care.” (FR 35294).

Unfortunately, implementation of the HHGM in the proposed form will not achieve that goal. Further consideration is required. The HHGM will only work well for beneficiaries who have the ability to recover quickly, (for example, someone who has received a hip replacement). Conversely, the HHGM will ensure little or no access for people who are clinically complex and have chronic illnesses and impairments. People who qualify for (and need) coverage and care for longer than 30 days and have not been admitted to home health care from a prior institutional stay will find it even harder to obtain, and retain, home care.

Implementing Medicare law should be the goal of regulatory payment and quality measures. MedPAC believes that “the Medicare home health benefit is ill-defined.” (FR 35294). This is not true. Medicare law clearly defines the home health care benefit. Since 1980, there have been no caps on overall visits or prior hospital stay requirements. If adopted in its present form, however, regulatory provisions such as the HHGM (applied with HHVBP and HH QRM), like PPS, will determine who will be cared for and who will be denied access to care.

Every home health care case should be individually assessed to determine appropriate Medicare coverage. As CMS and the courts have agreed, there should be no “rules of thumb” in Medicare. The proposed rule, however, based on inaccurate usage data, states that “[e]pisodes have more visits, on average, during the first 30 days compared to the last 30 days. Costs are much higher earlier in the episode and lesser later on.” (FR 35294) Again, this is certainly true for some patients, but not for those who live day-in and day-out for months and, often, years with chronically complex conditions. The “average” analysis of CMS is not only an inaccurate approach, because it considers all patients to be the same, it is painfully insulting to those patients who cannot be “rehabbed” back to functioning within a 30 day episode of care.

The proposed rule states, “[u]nder the HHGM, the first 30-day period is classified as early. All subsequent 30 day periods in the sequence (second or later) are classified as late…each period would be classified into one of two admission source categories – community or institutional – depending on what healthcare setting was utilized in the 14 days prior to home health.” (FR 35295)

Relatively small payment consideration is provided under the HHGM for care to individuals with comorbidities or functional impairments. Payments may be based on the needs of some patients – those who do not need care for very long and who had an institutional stay within 14 days of needing home care are projected to need the highest payment. But, care needs are not defined by the point of entry into care (institution or community). Nor are they defined by the length of time to achieve “lesser” care needs (30 days). The HHGM discriminates against people with chronic conditions, the very people CMS purports it seeks to protect.

The following is an example of how the HHGM would provide payment incentives for HHAs, (which are 90% propriety), to serve only those with short-term, post-acute care home health care needs (From Table 42, FR 35328-35329):

Complex nursing interventions (clinical group), Low (functional level) with a Comorbidity Adjustment, Timing (early or late)(“early” is first 30 days of care) and Admission Source (community or institution) = Payment weight

Early, Institutional =   1.3549 (payment weight)
Late, Institutional =    1.2367
Early, Community =   1.1840
Late, Community =     0.7937

A “late, community” beneficiary (with a payment weight of .7937), who may have greater care needs than a “early, institutional” beneficiary (with a payment weight of 1.3549) would have significant difficulty accessing care, based on low reimbursement for significant care needs, even though the beneficiary qualifies for Medicare home care under the law.

Finally, an overarching concern about the development of the HHGM is how “average” payment models continue to eliminate access to care. With the assistance of technology, care and payment needs based on individualized assessments should be possible. Instead, the proposed HHGM would create a payment process based on an over-simplified model. (Comorbidity? Yes or no, not one comorbidity or fifteen comorbidities. Clinical function? Low, medium or high.) Since the Medicare home health conditions of participation allow HHAs to pick and choose patients, the HHGM model must be reconsidered in order to ensure equal access to care. CMS should develop a margin neutral payment program.


2.Methodology Used to Calculate the Cost of Care

As discussed above, it is inappropriate to rely on the current resource usage data, as that data does not accurately reflect the need for care, but only the provision of care, skewed by the home health industry’s practice of maximizing profit under the PPS system. Accurate payment algorithms may be necessary, given the millions of beneficiaries who seek access to home health, but there must not be a one-size-fits-all approach to the process. There have been winners and losers under PPS. Great care should be taken not to allow the proposed rules to make similar mistakes by creating a new set of winners and losers based on an already skewed and inaccurate usage data.


3.Change From 60-Day Billing to 30-Day Billing Under the HHGM

a.30-Day Unit of Payment

The proposed rule notes that payments may be more accurately apportioned as episodes have more visits, on average, during the first 30 days. CMS believes the HHGM better approximates resource use and that it better aligns with how hospice and skilled nursing facilities bill.

Some patients need a higher intensity of services immediately following post-acute care. That makes perfect sense. What does not make sense is that the HHGM methodology only reflects the needs of some Medicare beneficiaries, while Medicare law applies to every Medicare beneficiary. Too many individuals with chronic conditions – who meet the same coverage criteria as those who may use home health care services to improve – have been denied care after the current 120 days of “early” care because HHAs lose money on “late” episodes. Changing from 120 days to 30 days will leave most people with chronic conditions with no admittance to the benefit. Further, the revised conditions of participation (COP) will force HHAs to consider not admitting people with chronic conditions if HHAs cannot discharge patients as easily as they do under current COP rules. The Center fears the advent of the HHGM will thwart COP intentions and further reduce access.


b.National Standardized 30-Day Payment Amounts

“Standardized” payments based on “average usage” will only work in practice if all beneficiaries are equally considered and admitted for the services they need and for which they qualify. Because Medicare COP rules do not require HHAs to serve all who qualify for the benefit, standards and averages are only based on HHAs choosing the beneficiaries in payment-scenarios that provide the highest margins. The greatest payment incentive of the HHGM is not in the function of the individual, but in the individual’s needs during a 30 day time period. The HHGM will define the benefit – not as the law defines home health care, but as the regulatory structure defines it – into a short-term, acute care benefit. Such a re-definition of home care is not what CMS defines as its goal for the program, and not what Congress wrote or intended in Medicare law.


4.Episode Timing Categories

The proposed rule seeks “[t]o advance the goals by better aligning payment with patient needs, as well as addressing payment incentives and vulnerabilities within the current system.” (FR 35307)

“Patient needs” are not represented by usage data that reflects services that have been driven by payment and quality incentives under such programs as PPS, HHVBP, HH QMR and HH COP. Therefore, it would be difficult for CMS to identify patient needs in this way in order to better align with them. Regulatory driven changes that occurred after CY 2000 created the usage data reported by MedPAC in its March 2017 report and in the proposed rule. There is an acknowledgement in the proposed rule that vulnerable populations were slighted under PPS. Through the HHGM, the proposed rule inaccurately ties payments to time in care, with very little regard to actual care needs. While this may be appropriate for some beneficiaries, it creates strong disincentives for HHAs to serve others with longer term needs and/or with no prior institutional stay.

In 2001, 27% of home care was provided to individuals who required more than two episodes (“late” episodes). By 2016, only 14% of care was for more than two episodes. This was likely due more to the fact that late episodes were compensated at a lower rate than early episodes and not because less people needed longer care. The Center for Medicare Advocacy hears regularly from beneficiaries who are discharged from care after two episodes, although their need for home health care continues. They are told they should wait for 60 days and be “readmitted” as “early” cases so that the HHAs may obtain a higher payment rate. Changing “early” from 120 days to 30 days under the HHGM would significantly devastate access to care for those with chronic conditions.


5.Admission Source Category

It is clear from payment-weights charted in the proposed rule (Table 42), that the greatest discriminator of all the HHGM criteria is admission source. Whether the timing is “early” or “late”, admissions from an institution would be most highly compensated under the HHGM, even considering adjustments for functional impairments and comorbidity. Community admissions are so significantly devalued as to further jeopardize access to care for those with chronic conditions and others who, fortunately, avoid hospital and skilled nursing facility stays.

The HHGM payment structure values the admission source significantly more than the actual care needed after admission. Table 42 shows that “late” services to an individual admitted from an institution would be paid more than “early” services to an individual who was admitted from the community, taking into account the same functional impairments and comorbidity. This may result in overpayment by CMS – if someone who was institutionalized did not need significant home health services, or it may result in loss of access to care – if someone who was admitted from the community was determined to be “unprofitable” by a HHA.

While each person is different, and requires an individualized assessment, the Center shares CMS’s concern for beneficiaries who seek home health care from the community. As the proposed rule notes, often “beneficiaries admitted to home health from the community typically require less resources but for longer periods of time when compared to the beneficiaries admitted from an institutional stay.” (FR 35311) However, a major problem with the proposed rule is it creates a payment system that discourages care for this entire group of people.

The rule goes on to state, “Medicare home health referrals coming from the community…were more likely to have chronic conditions than those referred from hospitals, and therefore, were more likely to require ongoing but less resource-intensive care.” (FR 35311) But, the proposed rule devastates reimbursement for those beneficiaries with ongoing care needs. For example, home health aides may be critical to keeping chronically ill patients at home, and home health aides are less costly than skilled staff (although skilled staff is required to qualify for the benefit). But the 62% decrease in home health aide visits from 2000 to 2014 shows how provider behavior has changed. Home health aides are largely not available or only available to provide occasional bathing because CMS has neglected appropriate funding for home health aides. This type of care, for people with chronic conditions, is not being properly addressed by the proposed rules. Indeed, the proposed system will only further the problem and encourage HHAs to serve people admitted from institutions who are in need of short-term care.

A significant problem with the HHGM is that PPS usage data is skewed and does not properly represent the needs of beneficiaries with chronic conditions. Another problem is that the HHGM must work in conjunction with HHVBP and HH QRM – programs that significantly disfavor service to individuals with chronic conditions, most of whom will not meet the HHVBP and HH QRM criteria to “get better.” These “value and quality” measures will ensure current access barriers for those with chronic conditions will only become significantly worse.


6.Proposed Clinical Groupings

Narrowing clinical groupings to six, combined with HH COP for a program in which HHAs are allowed to pick and choose the patients they serve, will continue to result in the more complex patients within each grouping being denied access to care. CMS may believe it is balancing-out payment for each clinical grouping by overpaying for some patients while underpaying for others to achieve an “average”, but the (largely) proprietary HHAs will analyze which patients within a clinical grouping are the most profitable and resist providing services to those who are not as profitable.


7.Functional Levels and Corresponding OASIS Items

The differences between the functional score payment weighting (low, medium, and high) do not appear to create an adequate payment incentive for a HHA to serve someone who is considered “low” functioning, given their considerable needs.


8.Comorbidity Adjustment

Without regard to whether an individual has one or fifteen comorbidities, the comorbidity adjustment is just a “yes or no” adjustment. The comorbidity adjustment does not appear to be well-considered. CMS will either overpay for the adjustment if the person has just one comorbidity, or access will be jeopardized for those with multiple comorbidities who are identified by HHAs to need more costly care.


12.Payments for High-Cost Outliers Under the HHGM

While outside the scope of the proposed rule, as a point of fact, fewer and fewer HHAs are willing to serve beneficiaries who create outlier status. HHAs that do serve high-cost outliers fear unfair targeting by CMS for fraud and abuse investigations. The Center for Medicare Advocacy continues to oppose the 10% limit on each HHA for high-cost outliers. There are HHAs that specialize in complex care and, in the best interests of the program and the beneficiaries who need specialized care, these HHAs should be vetted by CMS for an exception to the 10% cap.

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

B. Quality Measures

The Measure Set for the HHVBP Model (Table 43) (FR 35335), mainly requires improvement in patient functioning and this conflicts directly with the Jimmo Settlement. Behavior by HHAs has been significantly influenced by HHVBP measures (effective with 2016 data), as HHAs know payments will be increased or decreased based on those measurements.

HHVBP will always be a discriminatory model until quality is measureable for every single beneficiary. Simply put, if a person cannot be measured in some way that is of value to the home health agency, that person will not be served by an HHA because of the penalties imposed/rewards removed.

Future measures under consideration by CMS attempt to value maintenance care but have no proposal on how to include value measures for individuals “on a likely downward trajectory”. CMS plans to “exclude” them from HHVBP. (FR 35338)

Every beneficiary deserves quality care. Quality care must be measured for every beneficiary. There must be no exclusions.

IV.C. Quality Measures for Future Consideration

            1. Total Change in ADL/IADL Performance by HHA Patients

The proposed rule states that “the TEP supported continued development of the measure in the HHVBP Model as a way of including a measure that captures all three potential outcomes for home health patients: Stabilization; decline; and improvement…we have reviewed this suggested alternative and believe this measure would provide actionable and transparent information that would support HHA efforts to improve care and prevent functional decline for all patients across a broad range of functional outcomes.” (FR 35337)

Preventing functional decline for all patients is not a realistic outcome. But, maintaining function and slowing decline should be measurable. For individuals whose condition cannot be maintained, slowing the rate of decline is a “value” or “quality” that they seek to achieve as a goal for their home health services. In those cases, measured scores may be calculated based on expectations for each individual. Improvement scores for these individuals are not relevant and should not be applied.

A quality measure should be developed for individuals who have already reached complete function loss in grooming, upper and lower body dressing, toileting, hygiene, transferring, ambulation, meal prep, telephone use, and oral medication management. An individual whose care is not measured will not be cared for, and this is not acceptable.

If a person’s goal is to improve, because they can, that should be measured. If a person cannot improve, it is unfair to say “other factions affect functional decline but are beyond the influence of the HHA” (FR 352337). A HHA must always influence quality care and safety. A HHA should not be measured based on what it cannot do, because of the influence of forces beyond its control, but only on what it can do. It can provide an individual who is declining in function with the quality of life and safety he or she would not have, if not for the home health care. This measurement must be developed to accurately reflect the law and because people with little functional ability need and deserve care.


2.Composite Functional Decline Measure

As the proposed rule states, “[t]here are three potential outcomes for home health patients: Stabilization; decline; and improvement.” (FR 35337) Each of these potential outcomes should have its own set of value based measurements. The proposed Composite Functional Decline Measure appears to try to address both stabilization and decline. As described in the proposed rule, however, the measure would be better applied as a Jimmo maintenance measure for an individual who needs maintenance care.

The proposed maintenance scoring is confusing. The maintenance scoring states, “[t]he measure could be defined as 1 if there is decline reported in one or more of these items between the Start of Care and the Discharge assessments and zero if no decline is reported on any of these items.” Given this, it appears that a total lower number (zero) is better than a total higher number. This seems to be the opposite of the improvement measures, where a score of 1 is given for improvement and 0 is scored when there is no improvement. With the improvement measure, a total higher score is rewarded. (Page 15 of 73, Report to Congress: Plan to Implement a Medicare Home Health Agency Value-Based Purchasing Program). Whether higher or lower scores are better, if implemented, scoring should be consistent across all measurement categories.

The application of regression models and risk-adjustments to determine the likelihood of each individual’s functional decline is not appropriate unless there is also a complete analysis of the individual’s condition, and the individual’s unique injury or disease process. Patients, physicians and HHAs should reach an agreement in the plan of care about the individual’s goals for home health care and identify which of the three outcomes (stabilization, slow decline, improvement) those goals address.

Value based measurements should always recognize that there are many factors beyond the influence of the HHA, not just whether or not a person can maintain function or prevent deterioration of their condition.

Finally, CMS has established monetary rewards and penalties related to caring for people under HHVBP. CMS should never have implemented HHVBP without first ensuring that every single person who qualifies for care is capable of being measured. Since 2016, HHVBP has created severe access problems for people who are not improving, since monetary rewards are based on improvement. The Composite Functional Decline Measure (Jimmo Maintenance Measure) proposes to “potentially stratify the population to exclude those on a likely downward trajectory.” CMS must identify a measure for individuals who are likely to have functional decline, otherwise they will not have access to home health care.


b. Caregiver Can/Does Provide for Patient’s Mental or Behavioral Health Supervision Need

The proposed rule describes a “measure that would encourage HHAs to ensure that patients who need mental or behavioral health supervision are receiving such care from the patient’s caregivers.” (FR 35340). The Center for Medicare Advocacy recognizes that HHAs are hesitant to serve patients with mental or behavioral health impairments. An HHA should ensure there is a patient-centered approach to build a plan of care that is as safe and effective as possible, working with the patient, the patient’s caregiver, the physician, and HHA staff. But, to create a measure for a HHA to “ensure supervision” that would impose significant burdens on a caregiver, if there even is such a caregiver available and properly equipped to supervise, is an inappropriate requirement and contrary to longstanding Medicare policy. A caregiver may agree to supervise the individual but Medicare home health policy presumes there is no willing and able caregiver. Section 20.2, Chapter 7, Medicare Benefit Policy Manual (MBPM).

There are many reasons not to force caregivers to “supervise” patients, not the least of these is it may be ill-advised to place further burdens on caregivers, many of whom are already overwhelmed by their responsibilities – especially those who give care to those with mental or behavioral health needs.

V.        Proposed Updates to the Home Health Quality Reporting Program

            C. Accounting for Social Risk Factors in the HH QRP

The Center agrees that social risk factors such as income, education, race and ethnicity, employment, disability, community resources, and social support (socio-economic status factors or socio-demographic status factors) play a major role in health. We also share CMS’s concerns that holding providers to different standards for the outcomes of their patients with social risk factors may produce unintended consequences. Masking potential disparities, or minimizing incentives to produce the best possible outcomes for disadvantaged populations, must be avoided. Accounting for social risk factors and reducing health disparities in HH QRP should be a CMS goal, achieved in consultation with beneficiaries and beneficiary advocates.

E. Proposed Collection of Standardized Patient Assessment Data Under the HH QRP

1. Proposed Definition of Standardized Patient Assessment Data

The Center is greatly concerned with CMS characterization of Medicare home health only as a post-acute care benefit. Home Health is referred to as a “PAC provider type”. There is no acknowledgement by CMS that home health coverage may be other than post-acute care. There is no discussion in the proposed rule of how the collection of standardized patient assessment data may differ for people who are admitted to home care from the community, if at all. The focus is solely on “the four post-acute care settings to which the IMPACT Act applies.” (FR 35343) This is contrary to the Medicare Act and to public health policy that hopes to avoid institutional care and encourage care in less intensive settings.

The proposed rule seeks to determine if the assessment questions and response options in the four PAC assessment instruments should be standardized with one another. Looking at the unique population that enters home care through post-acute care, it makes sense to promote “standardization across the four PAC provider types” to compare one “PAC provider type with another for purposes such as care coordination and quality improvement.” (FR 35344).

The Center disagrees that the analysis should stop with home health as a “PAC provider type”. Medicare home health is not only post-acute care. Equal incentives to providers to serve all qualified beneficiaries must be developed.

The proposed rule states that CMS will “take into account patient characteristics, rather than setting, as described in the IMPACT Act.” (FR 35344) But, characteristics of people in their home settings are important. How patients interact within their home settings is critical to the care they receive. Assuming that people’s behavior, needs, and care are the same regardless of setting is a critical barrier to caring for all individuals appropriately at home.

The proposed rule acknowledges that data use is important to “future payment methodologies that could more directly take into account individual beneficiary health characteristics”. (FR 35344) Caring for people in their homes, whenever possible, according to each individual’s need is the best use of resources and should be standardized, where possible, but individualized where necessary to ensure access to care.

Finally, the HH QRP places heavy emphasis on improvement and ignores quality of care provided by HHAs to individuals whose goals are to maintain or slow deterioration of function. Appropriate quality measures must be developed for every individual who qualifies for home health care. Until this is done, access to care will remain jeopardized.


The Center urges CMS not to implement the proposed rule at this time. Place Medicare beneficiaries and law at the center of a discussion on how best to achieve stated goals, and reconsider the collective impact of all payment rules, quality measures and program participation requirements.

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

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