The never-ending discussion between healthcare providers and the Centers for Medicare & Medicaid Services (CMS) regarding the interpretation and true intent of regulatory mandates can be frustrating for both providers and CMS.

Despite the fact that some regulatory language has not changed for years, it is often the source of ongoing discussion, debate, and re-interpretation, all for the sake of clarity and to assist providers in their desire to comply. The issue is exacerbated every year when final rules are published by CMS, and the discussion about what was perceived to be settled issues begins anew. Unfortunately for providers, clarifications sometimes come as result of governmental audits, when the uproar from providers and their trade associations, in the face of extensive denials, prompts the Medicare Administrative Contractors (MACs) or CMS to put out additional information “clarifying” their positions. These issues are common across all healthcare service settings subject to Medicare regulations; to some extent they are found regardless of payer source, because the payer defines what services they will and will not pay for and what documentation is required to collect that payment. In this article, we will focus on two examples of contentious issues faced by inpatient rehabilitation facility (IRF) providers, but the underlying concepts of how to address issues of regulatory interpretation are relevant to all providers.

Example #1: The 3-Hour Rule

Recent IRF audit activity conducted by the MACs focused on short-stay IRF admissions, generally a week or less. MACs are making a determination about the medical necessity of these admissions based, in part, on the intensity of service the patients received while in the IRF. The “3-hour rule,” which requires the IRF inpatient to be able to participate in three hours of rehabilitation therapy per day, five days per week, or 15 hours of rehabilitation therapy over a one week period, is well known by IRF providers. Even though it is called the 3-hour rule, it is a CMS guideline that was first discussed in the FY 2010 IRF PPS final rule to demonstrate the intensity of therapy typically provided in an IRF.

Many IRF providers have implemented a rigorous tracking system to ensure compliance
with the 3-hour rule, or 900 minutes of therapy per week, but determining compliance
is not always as black and white as a mere minute count. Many factors must be considered when making a determination about whether a provider is in compliance
with the intensity-of-service requirement. In the regulation cited above, CMS stated that
there is the expectation that at the time of admission, patients admitted for inpatient
rehabilitation are able to tolerate the expected three hours a day of therapy, or 900 minutes of therapy a week; the prior practice of “ramping up” during the first week would no longer be acceptable. The issue arises when a short-stay patient is discharged quickly, and they may not have had the time to make up any minutes of therapy not received the first day or two of their stay.

However, not meeting those targets every day/week can be justified if the lack of therapy minutes is supplemented by a documented medical need for that particular patient. For short-stay patients, those needs may include things like excessive fatigue on the first day due to the transfer process and/or any therapy received prior to arriving at the IRF, being unavailable for therapy for an extended part of a day due to medical tests or procedures, an acute change of condition that is being medically addressed, or some additional recovery needed one day following a string of days of intense therapy. It is important that therapists and the rehabilitation physician document in real time any reason why a patient is unable to complete their expected therapy each day.

Doing so will demonstrate that these decisions were based on a plan of care for that patient and not due to facility scheduling, lack of staffing, or other issues.

Example #2: Group Versus One-On-One Therapy

With the October 2015 revisions to the IRF Patient Assessment Instrument (PAI), providers now must document individual, concurrent, group, and co-treatment therapy minutes provided to each patient. This requirement to differentiate the type of therapy service being provided makes it clear that CMS has concerns about the potential overuse of treatment approaches other than one-on-one therapy. More importantly, MACs are now denying IRF admissions based on the overutilization of group and concurrent therapy.

Here is the guidance CMS has provided:

Once again, CMS’s use of ambiguous, subjective, and interpretative language becomes an issue for providers to contend with. CMS uses the terms adjunct, supplement, and preponderance, but does not define exactly what these terms mean. Furthermore, the MACs are denying claims based on the overutilization of group and concurrent therapy, but are not being clear on how they determined that the IRF was non-compliant (e.g., how much group and concurrent therapy is too much?). Because these terms are qualitative, not quantitative, denials based on overutilization can be avoided or rebutted by documentation that

describes the role group or concurrent therapy provides in the patient-specific plan of care (i.e., why group was used that day versus one- on-one). Concepts such as completing activities despite distractions or interruptions, incorporating peer support to improve participation, etc., would support the contention that group or concurrent therapy was an important part of the patient’s plan of care to return to function in the community and was not being utilized for the convenience of the IRF.

Take Home Message

As the examples above show, while the words may seem clear on the surface, not all CMS regulatory language is black and white.

Regulatory language can many times be defined as ambiguous, subjective, and interpretative. To the extent possible, providers should:

  • Develop a relationship with the CMS lead for their service setting and contact them directly with questions regarding CMS’s interpretations and expectations.
  • Participate in Open Door forums and submit Q&As to CMS via the provider-specific web sites developed specifically for this purpose. It may take several weeks or months to get a response, but CMS ultimately will respond and their response can provide additional under- standing as to how a specific regulation should be interpreted and what a provider needs to do to comply.
  • Review the MAC’s monthly newsletters and participate in the periodic provider training they offer. Although the training is generally a CMS preapproved presentation, it does provide valuable information as to the guidance CMS has provided to the MACs. The discussions that occur with the providers during those trainings have resulted in the MACs going back to their office and issuing clarifications that specifically reflect providers concerns—even though you may not like the answer.

Conclusion

The regulatory language itself may not change, but CMS’s explanation of regulatory language often changes over time, based on their continual review of claims and feedback from providers and trade associations. The take home message here is to stay current and know what you need to document in your medical records to defend and support compliance with CMS regulations. The reviewers at the MACs and elsewhere are not always clinicians, so it is up to us as providers to connect the dots between the care we provided and the regulatory requirements. Doing so will mitigate your exposure to claims denials and allow you to successfully defend those that come your way.

Article reposted with permission from Health Care Compliance Association. Originally published in the February 2017 Issue of Compliance Today.