Medicare Compliance & Reimbursement

Rule could put some IRFs out of business. 

Now that the comment period has ended for inpatient rehab providers to tell the Centers for Medicare & Medicaid Services what they think about its attempt to fix the 75 percent rule, it's time for providers to call their congressmen - and figure out how they'll comply with the rule if it isn't changed.

CMS published its proposed inpatient rehab criteria rule (i.e., the 65 percent rule) in the Federal Register Sept. 9. And although the rule looks okay at first glance - since it drops the percentage of patients who must fit into its specifications from 75 percent to 65 percent - a closer look reveals that it's cause for real concern.

Aside from the 75 percent threshold being dropped to 65 percent, another area of the rule that looks good on the surface is CMS' proposed comorbidity provision. This provision stipulates that a patient who does not have one of the 12 qualifying diagnoses can still count toward the 65 percent threshold if that patient also has a comorbidity that is among the 12 qualifying conditions and that comorbidity is serious enough that it would require inpatient rehab even in the absence of the primary diagnosis.

For example, many patients receive inpatient rehab following open-heart surgery because they became anoxic during the surgery, notes consultant Ann Lambert Kremer with Baker Newman & Noyes in Portland, ME. In such cases, the patient is actually receiving rehab due to damage resulting from lack of oxygen to the brain during a complication in the surgery, she says. The open-heart surgery would not qualify the patient to count toward the 65 percent threshold, but that comorbidity would, she explains. "So there's a good example of one that would fit," she says. "But there's not a lot of examples."

And that's the problem, experts agree. On the surface, the comorbidity provision is all well and good - the trouble is that there are so few real-life scenarios in which a comorbidity would count toward the 65 percent that the provisions are practically useless. "If you have one of the CMS 12 as a comorbidity and it's significant enough to require rehab," then that comorbidity usually will be listed as the primary diagnosis anyway, argues Cheri Rinehart, vice president of integrated delivery services for the Hospital & Healthsystem Association of Pennsylvania.

Polyarthritis Removal Makes It Harder To Reach Threshold 

Had CMS left "polyarthritis" on the list of qualifying conditions, the comorbidity provisions would have been a bit more helpful, notes consultant Fran Fowler, with Fowler Healthcare Affiliates Inc. in Atlanta. Polyarthritis often is a comorbidity for cardiac patients, and thus could have qualified a lot of people, she says.

In place of polyarthritis, the proposed rule adds three new conditions:

1. Active, polyarticular rheumatoid arthritis, psoriatic arthritis, and seronegative arthropathies (i.e., a disease of the joints lacking the antibody usually found in arthritis, such as rheumatoid arthritis without rheumatoid factor);

2. systemic vasculidities with joint inflammation; and

3. severe or advanced osteoarthritis involving three or more major joints with joint deformity and substantial loss of range of motion and atrophy.

The kicker is that for any of these conditions to qualify, the patient must exhibit "significant functional impairment" of daily activities for which he just finished an unsuccessful "appropriate, aggressive, and sustained course of outpatient therapy services or services in other less intensive rehabilitation settings," according to the proposed rule.

That requirement will render these categories of arthritis useless in most cases. "We might be talking about a couple of cases per year which would add for the threshold, but not enough to make any significant impact," Rinehart predicts.

CMS is now peering through the comments providers sent in before the Nov. 3 deadline, and there is support on Capitol Hill for the proposed rule to be changed, notes the Hospital & Healthsystem Association of Pennsylvania's federal lobbyist, Scott Malan.

Further, Representatives Frank LoBiondo (R-NJ), John Tanner (D-TN), and Nita Lowey (D-NY) Oct. 7 penned a "Dear Colleague" letter to HHS Secretary Tommy Thompson and CMS Administrator Tom Scully. The letter asks that an Institute of Medicine study be undertaken before CMS implements the proposed changes. In the meantime, the letter suggests that CMS "reduce the threshold of the existing rule from 75% to 50%, with the industry's commonly used interpretation of polyarthritis."

Now is a good time for providers to lobby their congressmen on the issue, Malan urges. "People are really starting to understand how this is a problem for patients and are starting to speak out," he concludes.