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August 27, 2018

Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-1689-P
P.O. Box 8013
Baltimore, Maryland  21244-8013

Submitted electronically to:

Re:  CMS-1689-P; Federal Register, Volume 83, No. 134 (July 12, 2018)

The Center for Medicare Advocacy (the Center) provides these comments regarding CMS-1689-P and the impact of the proposed rule on access to home health care for vulnerable older and disabled people.

The Center, founded in 1986, is a national, non-profit law organization that works to ensure fair access to Medicare and quality healthcare. The organization 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 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 Center also participated on the Technical Expert Panel convened in February 2018 to discuss issues related to this proposed rule.

The proposed rule purports “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 32380-32381). Unfortunately, the Center believes the proposed payment model will further diminish access to care, particularly for people with complex, longer-term and chronic conditions – people who are already unable to access the care they need. Simply put, the Patient Driven Groupings Model (PDGM) is not guided by the needs of patients. It will exacerbate an existing crisis in access to home care for people most in need.

Over recent decades, Medicare payment incentives, not patient needs, have driven the delivery of care as providers seek to maximize income. Thus, a new payment system based on prior care delivery patterns will not be aligned with actual patient needs.  The data will not show what patients really need, only what was delivered as a result of past payment incentives.

Home health care agencies have been encouraged by Medicare payment and quality policies to serve patients who will provide the greatest profit margin, and whose conditions will improve, while stinting on care to “less profitable” patients, with longer-term and chronic conditions. The proposed rules would further exacerbate this problem, creating additional incentives to provide care to beneficiaries with short-term, improvement goals. As lead counsel in Jimmo v. Sebelius, the case that confirmed Medicare determinations should turn on the need for skilled care, not on an individual’s ability to improve, we strenuously object to the PDGM.

Based on our experience representing thousands of Medicare home health patients for over 30 years, the Center concludes the proposed rule will result in the following harmful consequences:

  • Beneficiaries who were not recent inpatients and/or need more than 30 days of home health care will experience even greater problems accessing care than currently.
  • Beneficiaries with longer-term and chronic conditions who are unlikely to improve will continue to experience a decline in the availability of Medicare home care services.
  • Beneficiaries with hospital observation stays or emergency room visits will experience a decline in access to home health care.
  • Beneficiaries who need and qualify for Medicare-covered therapy will receive less therapy.
  • Beneficiaries with severe functional impairments and comorbidities will have even greater problems accessing care, as agencies will not receive enough of a payment boost to provide this care.
  • Home health aide services for beneficiaries who are not recent inpatients will all but disappear.
  • Access to home health aide care will continue its precipitous decline.
  • Home health agencies will increase affiliations with companies that provide home health aide services on a private-pay basis.
  • The number of not-for-profit home health agencies will further decline.
  • Home health agencies will affiliate with inpatient health care institutions, and/or institutions will acquire home health agencies.
  • Inpatient health care institutions will refer patients to affiliated home health agencies at a greater rate.
  • Home health agencies will only hire sufficient staff to serve “profitable” Medicare beneficiaries – people with short-term and post-institutional care needs.
  • Smaller, non-affiliated home health agencies will close or only take private-pay patients.
  • Home health agencies will continue to report annualized profits of 16-20%[1] while the budget neutral program update is only 2.1% (FR 32370), while beneficiaries go without care or receive less than is ordered and needed.

While it may be impossible to prove how many people over the past decades have been denied access to the Medicare home health care for which they qualify under the law, it is not difficult to identify who those people are: Individuals with longer-term and chronic conditions who require skilled services to be able to maintain their conditions or slow decline. Most often, they also require and qualify for home health aides to help them get out of bed, go to the bathroom, dress, eat and take medications. Such services enable many individuals to live independently in their own homes. While Medicare law covers this care, payment rules often preclude it in practice, because patients with longer-term and chronic conditions provide agencies with minimal profit margins, at best. The proposed rule will worsen this situation and lead to an even greater number of beneficiaries losing access to home care for which they qualify under the law.

Payment Models Determine What Care is Provided

Former and current Medicare home health payment systems, (Interim Perspective Payment System, IPS; 1997-1999 and Prospective Payment System, PPS; 2000-present), did not change the type of services patients need, but these payment systems did change the type of services agencies were willing to provide. Responding, in part, to problems homebound patients faced in accessing therapy, IPS and PPS provided financial incentives to deliver more therapy services. While the past 20 years show agencies delivered more therapy services, the delivery of skilled nursing services and home health aide services plummeted. As reported in the 2018 MedPAC report, since 1997, the average number of visits per 60-day episode of home health care have changed as follows: Skilled nursing from 14.1 to 9.4 (down 33%); home health aides from 13.4 to 1.8 (down 87%); therapy from 3.8 to 7.5 (up 49%).[2]

Payment policies drive what care home health agencies are willing to provide, and to which patients. Through the IPS and PPS payment policies, Medicare changed provider behavior and effectively turned the Medicare home health coverage into a short-term, acute care benefit, despite the law and Congressional intent to allow coverage so long as coverage criteria are met. The proposed PDGM rule continues this march toward making Medicare a short-term home health benefit, contrary to the law.  

Significantly, in 1980 Congress repealed a 100 visit cap and prior hospital or SNF requirement for Medicare home health coverage. When Congress developed the IPS and the PPS in the 1997 Balanced Budget Act (BBA), it affirmed this Congressional intent, arranging for payment of longer term home care, thus making it clear that Medicare home health coverage is not intended to be just a short term benefit. Medicare law does not cap reasonable and necessary home care, except for a weekly limit of up to 35 hours a week of skilled nursing and home health aide, combined. The law has no duration of time limitation.

For decades, the Center assisted beneficiaries to remain in their homes with necessary, Medicare-covered care. These included individuals like our client Mrs. B., who had multiple sclerosis, lived alone, and needed some skilled nursing and therapy and home health aides. Today, payment policies have made it almost impossible for people like Mrs. B to obtain the care they need to stay home. In particular, the aides that helped her with key personal care is now rarely available through Medicare. Repeatedly, patients are told they can only receive an aide 1-3 times per week and usually only for bathing. Increasingly, patients are also told, however, that they can receive the personal care they need from a parallel, often affiliated, proprietary entity.  This situation puts patients who stay at home nonetheless in jeopardy, and forces others into institutions. The lack of access to home health aides is driven by the current payment system that does not increase the episodic payment for providing aides. The proposed payment rule will continue and exacerbate this foolish model, which jeopardizes patients and leads to the need for more expensive care.

The Proposed Rule Will Further Define and Limit Care

When IPS and PPS ushered in the concept of a “bundled payment” for all services, the idea was that the payment “bundle” was statistically structured to balance the cost of providing care for less resource intense patients with higher resource intense patients. Thus, care would be provided for everyone who qualified. Such a balance did not occur. The last 20 years has shown that agencies largely adapted their businesses to serve the least resource-intense patients, retaining the full bundled payment, and refusing to serve higher resource-intense patients.  For example, we recently spoke with a beneficiary, who was accepted by a home health agency for a weekly hour of physical therapy. The agency will be paid the Medicare bundled payment for services. In order to receive a second hour of physical therapy, however, the agency said she would have to private pay. That second hour of therapy should have been included in the Medicare episodic payment.

Home health care has become a highly profitable business. Ignoring proposals for a cap on industry profits, to return some of the average 16.4% annual margin provided over the past 20 years[3] back to Medicare, CMS has allowed industry profits at the expense of the public, while the most vulnerable Medicare beneficiaries are denied care. While agencies have achieved an average marginal annual profit of 16.4%, program wide payment updates have been minimal – 2.1% is proposed for 2019 (FR 32370). Indeed, of all the health care sectors, home health posted the highest trading multiples for mergers and acquisitions in 2016. Purchase of agencies increased 8% in 2015, and “deal value” increased 121%.[4] Every year a greater percentage of public funding goes to home industry profits and less to patient care. Instead of recognizing this as a major problem for Medicare, taxpayers, and patients, the proposed rule accelerates efforts that ignore Medicare coverage laws and further the process of turning Medicare home health coverage into a short-term post-acute care benefit.

The Rule Creates Incentives to Serve Post-Hospital and Short-Term Patients

The Center reiterates the comments it filed in 2017 regarding the proposed Home Health Groupings Model (HHGM). Regrettably, this proposed rule includes two additional, particularly significant payment incentives that that will drive agencies to provide care to people who have had recent inpatient stays and/or patients who only need short-term care. (See payment ratios, FR 32499-32500). While the HHGM includes much smaller payment influences based on functional need level, clinical grouping, and comorbidity group, these additional factors add disincentives to serve people who are most in need of care. If agencies are not required to serve all Medicare beneficiaries who qualify, as a requirement to participate as a Medicare provider, agencies will simply analyze the final rule to serve patients who help maximize profits. Since the vast majority of agencies are proprietary, they are compelled to do so. Services will focus on post-institutional home care for only a month. Patients who need care for more than a month and/or who avoid hospitalizations will have even less access to home care.

CMS and MedPAC analyses show a trend of increasing episodes of care that are not preceded by  an inpatient stay and take this trend to be a “a significant potential for overuse.” (FR 32352) Instead, policy-makers should recognize that planned changes in the delivery of care have resulted in less inpatient stays and more complex care provided in outpatient settings. People are being admitted to the hospital for procedures less often as more and more procedures are performed on an outpatient basis. They need more home care, not less. Further, providing necessary care at home is often preferable for patients and less expensive for Medicare. In addition, CMS’s so-called “outpatient” observation policy categorizes an ever-increasing percent of hospital patients, who would have been considered inpatients in the past, as outpatients. These patients will be further harmed by the proposed payment rule, which will inevitably lead to home care providers preferring to serve people who have had prior inpatient hospital admissions. Yet these same patients need more access to home care than in the past since they cannot qualify for Medicare-covered nursing home care (which requires a prior three-day inpatient hospital stay).

Patients who are able to avoid inpatient stays, or who are categorized as outpatients, should not have their access to home care jeopardized by a lower payment ratio when their care needs are often the same or more intense than patients who have had prior inpatient admissions. The proposed rule’s explanation that, on average, more intense resources are needed post-inpatient is an erroneous rule-of-thumb that will harm many Medicare beneficiaries. The application of such non-patient-centered payment rules will overpay agencies to underserve too many beneficiaries, particularly those with longer-term conditions

Home health agencies committed to serving people who need care for longer-term and chronic conditions are already penalized by payment disincentives, through models such as the PPS and HHVBP. They are also punished with lower quality ratings, since many of these patients are not able to improve and they face intimidating audits when they provide care for “too long”, even when patients continue to qualify for care. As a consequence, agencies are increasingly unwilling to provide care for beneficiaries with longer-term and chronic care needs. CMS should develop payment models and quality measures that encourage agencies to serve beneficiaries with the greatest health challenges, not penalize them. Regrettably, the proposed rule does the opposite, adding further disincentives to care for patients with serious illnesses and chronic conditions.

Last year’s home health proposed rule gave some consideration to a possible maintenance quality measure in the home health value based purchasing (HHVBP) model. This year’s proposed rule does not include such a measure to judge how care is provided for people with longer-term and chronic conditions. This is particularly troubling since providers will soon be penalized by up to 8% when they do not meet goals for improving patients’ conditions. This will create yet another disincentive to serve people who are not able to improve.

CMS Should Develop Rules With Equal Incentives to Provide Care for All Who Qualify Under the Law

The Center urges CMS to design payment and quality rules that effectuate Medicare coverage laws and encourage providers to serve all patients The proposed rule, with its 216 categories heavily weighted towards providing care for the short term is bound to further exacerbate home care access problems for individuals with longer-term and debilitating conditions. It will inevitably hamper implementation of the Jimmo Settlement, which seeks to open Medicare-coverage for skilled maintenance care, and will lead to discrimination against people with disabilities. CMS should rescind this rule and develop systems based on individual functional status and care needs so that providers are encouraged to serve all beneficiaries who qualify for coverage under the law.

Comments Regarding Specific Provisions

III.C.4. CY 2019 Annual Payment Update (FR 32369)

The Center disagrees with the proposal to reduce the labor-related share from 78.5% to 76.1%, and increase the non-labor-related share from 21.5% to 23.9%; such a change will result in less care for patients.

III.E.3. Outliers – Payment Clinical Example (FR 32377)

The Center commends CMS for including statements reminding providers that Medicare coverage turns on the need for skilled care, not on improvement. We also commend CMS for providing an example of how an outlier payment can be sought for providing care for patients living with significant longer-term and debilitating conditions including ALS. We remain concerned, however, that the caps on outlier payments limits the value of this approach to opening access to care for beneficiaries in need. Indeed, the Center regularly hears from beneficiaries, including patients with ALS, whose situations closely match those in the proposed rule’s Clinical Example. These patients report having been told by home health agencies that “Medicare doesn’t pay for home health aides,” or “Medicare doesn’t pay for maintenance therapy,” or “Medicare doesn’t cover PT for people with ALS,” or “We don’t provide maintenance therapy.” CMS should attend to these concerns with a revised rule that addresses the cap on outlier payments and creates equal profit margins and incentives for providing care for all patients who qualify under the law.

III.F.1. Suggestions for improving the case-mix adjustment methodology (FR 32380)

CMS should thoughtfully develop multiple case-mix adjustments that will not leave so many beneficiaries out. “Average” standards will always skew to the most profitable patients for agencies. Further, the hospital “outpatient” observation phenomenon is real, growing and must be seriously considered in any rule that provides payment incentives based on prior inpatient institutional care. Patients in “outpatient” observation status have already lost access to Medicare skilled nursing facility care, they must not also be put at a disadvantage when they seek home health care.

III.F. Figure 4 (FR 32382)

The Center believes using the term “Functional Level” with a score of low-medium-high is confusing. This will confuse providers into thinking the reference is to low, medium, or high functional level. It would be clearer to refer to this measure as a “Functional Impairment Level in which case a low, medium, or high functional impairment would be properly indicated.

III.F.12. Effect of 30 Day Payment on Outliers (FR 32421)

The Center is concerned that the change to 30 day payment periods would result in 4.77% total HH PPS payment in CY 2019 from the current 2.3%, thus forcing an adjustment of the fixed dollar loss ratio from .55 to .71 and making it harder for beneficiaries to obtain outlier services. We are also concerned that the change to 30 day payment periods will send an additional message to agencies that care is expected to be provided for short periods of time.

III.G.3. Changes to Information Used to Satisfy Documentation of Medicare Eligibility for Home Health Services (FR 32423)

The rule proposes to allow the home health agency medical record documentation to serve as the support for home health coverage. The Center is concerned, however, that the documentation will also be used to deny coverage for patients that home health agencies no longer want to serve. It appears that the certifying physician is required to sign and date the records of the home health agency and then the home health agency records must substantiate eligibility. Unfortunately, it is not uncommon in our practice to review medical records that simply do not adequately reflect the care that was actually provided. 

Further, given the fact that a busy physician does not have the time to read hundreds of detailed home health agency records, the home health agency may make unsubstantiated claims about a patient not being homebound or not needing skilled care. This would allow home health agencies too much control over Medicare coverage, and an opportunity to override the physician’s opinion. The Center often hears from patients who have a doctor’s order for care that the provider has reduced or discontinued. As a consequence, beneficiaries are forced to settle for less care for fear the agency will otherwise not provide any services at all.

If the medical record is to be allowed to stand on its own, it should be only to confirm coverage is available, not to deny coverage.

III.G.4. Changes to Eligibility Certification and Recertification (FR 32424)

The Center agrees with the proposal to eliminate the regulatory requirement for the certifying physician to estimate how much longer skilled services will be needed.

III.H. Remote Patient Monitoring (FR 32425)

The Center agrees that Remote Patient Monitoring should not be used as a substitute for in-person home health care, but recognizes it can be helpful to augment care for some patients. CMS should monitor the use of remote monitoring to ensure it does not, in practice, reduce access to necessary in-person care. CMS should also clarify that if the remote service is nursing, it can help satisfy the skilled nursing requirement to trigger Medicare coverage for other covered home health services such as home health aides and occupational therapy.

IV.A. and B. Home Health Value Based Purchasing (HHVBP) Model (FR 32426)

The Center strongly objects to any quality measures based largely on improvement and reiterates that agencies must be equally encouraged and rewarded for serving beneficiaries who cannot improve, but need skilled care to maintain or slow decline of their conditions. Quality measures that focus, or provide greater weight, to care for patients who improve are harmful to beneficiaries as they create a disincentive for providers to admit patients with conditions that will not improve. Further, an agency with a five-star rating under current measures could be a terrible match for an individual with a longer-term or debilitating condition since five-star agencies will only have been measured on how they care for patients who improve.

We hope the “Total Normalized Composite Change” standards that CMS proposes to replace three of the improvement quality measures is a step in the right direction. We hope the Rule’s expressed goal that “all HHAs provide high quality care and we believe that awarding more points for achievement than for improvement … would support that goal” (FR 32425), will help enhance access and quality of care for all beneficiaries.

CMS must further design and enforce quality measures that equally commend quality care, and sanction poor quality, to maintain an individual’s condition or slow decline, just as it does for improvement services. More must be done to ensure equal quality measures are created, amplified and enforced.

IV.B.3. Reweighting the OASIS-Based, Claims-Based, and HHCAHPS Measures (FR 32431)

HHCAHPS measures that consider patient and caregiver experiences should not be weighted at a lower percentage than the OASIS-based and claims-based measures, even by 5%. To do so would send a message to home health agencies that the patient experience is less important than the other measures.

V. Proposed Updates to the Home Health Quality Reporting Program (HHQRP) (FR 32439)

CMS states, “[a]mong our core objectives, we aim to improve health outcomes, attain health equity for all beneficiaries, and ensure that complex patients as well as those with social risk factors receive excellent care.” (FR 32439). The Center believes that until such time as value-based program measures selection, domain weighting, performance scoring, and payment methodology accounts equally for all beneficiaries, including people with debilitating conditions, social risk factors and health factors, these core objectives will fall short of their laudatory goals.


The Center urges CMS to place the interests of all Medicare beneficiaries at the heart of its payment and quality rules. How providers get paid and measured drives who gets access to care. Thus, these rules must carefully reflect Medicare coverage laws, and advance Congressional intent. The proposed payment rules fall short of this standard. We urge CMS to put these payment rules on hold while it considers the collective impact of all home health payment rules, quality measures and conditions of participation requirements. At that time new rules should be proposed that encourage access to home health care for all people who qualify under the law, for all services covered under the law.

We appreciate the opportunity to submit these comments on behalf of all those who have the legal right, and urgent need, to obtain Medicare-covered home health services.


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

Judith Stein, J.D.
Executive Director/Attorney

For additional information, please contact Kathleen Holt, at or Judith Stein at, or at (860)456-7790.

[1]MedPAC, Report to the Congress: Medicare Payment Policy. March 2018. Chapter 9. 241-262.
Rosarti, R. Russell, D. Peng, T. The Care Span Medicare Home Health Payment Reform May Jeopardize Access for Clinically Complex and Socially Vulnerable Patients. Health Affairs. June 2014; 952.
[2] MedPAC, Report to the Congress: Medicare Payment Policy. March 2018. Chapter 9. 241-262.
Rosarti, R. Russell, D. Peng, T. The Care Span Medicare Home Health Payment Reform May Jeopardize Access for Clinically Complex and Socially Vulnerable Patients. Health Affairs. June 2014; 952.
[3] MedPAC, Report to the Congress: Medicare Payment Policy. March 2018. Chapter 9. 241-262.
Rosarti, R. Russell, D. Peng, T. The Care Span Medicare Home Health Payment Reform May Jeopardize Access for Clinically Complex and Socially Vulnerable Patients. Health Affairs. June 2014; 952.
[4]  Mullaney, T. Home Health Deals Commanded Impressive Valuations in 2016. Home Health Care News. January 2017.

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