Genesis HealthCare Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, June 24 -- LaShuan M. Bethea, vice president of legislative affairs at Genesis HealthCare Inc., Kennett Square, Pennsylvania, has issued a public comment on the Centers for Medicare and Medicaid Services' proposed rule entitled "Medicare Program: Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities; Updates to the Value-Based Purchasing Program for Federal Fiscal Year 2021". The comment was written on June 9, 2020, and posted on June 12, 2020:

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On behalf of Genesis HealthCare Inc., a leading provider of healthcare and support services to the elderly and disabled,/1 we write commenting on the notice of proposed rulemaking for Skilled Nursing Facilities (SNFs) published in the Federal Register, April 15th, 2020 (Vol. 85, Issue 103).

Professionals from our company have participated in the drafting of comments on these proposed rules. We have also reviewed comments submitted by the American Health Care Association (AHCA). Rather than duplicate the detailed comments addressing various issues in the proposed rules, we will state our position and reference the AHCA comments for additional detail when appropriate.

MARKET BASKET

Page 20918: "For FY 2021, we are proposing to apply the SNF market basket update factor of 2.3 percent in our determination of the FY 2021 SNF PPS unadjusted federal per diem rates, which reflects a market basket increase factor of 2.7 percent, less the 0.4 percentage point MFP adjustment."

Page 20917: "Per section 1888(e)(5)(A) of the Act, the Secretary shall establish a SNF market basket index that reflects changes over time in the prices of an appropriate mix of goods and services included in covered SNF services."

Response: We want to underscore the strategic point made by the American Health Care Association in its comments relative to the analysis conducted by AHCA using both public data and primary data collected from AHCA members. The results of the analysis highlight the significantly higher costs associated with delivering care in a COVID-19 environment. As a result we support the AHCA proposal that the statutory language in Section 1888(e)(5)(A) of the Social Security Act permits CMS to select an alternative time period which would capture costs associated with COVID-19 pandemic.

CONSOLIDATED BILLING

Page 20926: In the proposed rule for FY 2001, we also noted that the BBRA Conference report (H.R. Rep. No. 106-479 at 854 (1999) (Conf. Rep.)) characterizes the individual services that this legislation targets for exclusion as high-cost, low probability events that could have devastating financial impacts because their costs far exceed the payment SNFs receive under the PPS. According to the conferees, section 103(a) of the BBRA is an attempt to exclude from the PPS certain services and costly items that are provided infrequently in SNFs. By contrast, the amendments enacted in section 103 of the BBRA do not designate for exclusion any of the remaining services within those four categories (thus, leaving all of those services subject to SNF consolidated billing), because they are relatively inexpensive and are furnished routinely in SNFs.

Response: We ask that CMS consider whether application of the following provisions would enable payment for COVID-19 testing under Medicare Part B for patients currently covered in a Medicare Part A stay.

42 CFR Sec. 411.8 Services paid for by a Government entity. (a) Basic rule. Except as provided in paragraph (b) of this section, Medicare does not pay for services that are paid for directly or indirectly by a government entity. (b) Exceptions. Payment may be made for the following: (1) Services furnished under a health insurance plan established for employees of the government entity. (2) Services furnished under a title of the Social Security Act other than title XVIII. (3) Services furnished in or by a participating general or special hospital that-- (i) Is operated by a State or local government agency; and (ii) Serves the general community. (4) Services furnished in a hospital or elsewhere, as a means of controlling infectious diseases or because the individual is medically indigent.

In addition we support the AHCA recommendation that CMS implement a Section 1135 waiver, retroactive to the beginning of the COVID-19 PHE, to include COVID-19 testing in the SNF consolidated billing provisions, and permit these services to be billed separately under Medicare Part B.

PATIENT DRIVEN PAYMENT MODEL

Page 20919: "We also continue to monitor the impact of PDPM implementation as it relates to our intention to ensure that PDPM is implemented in a budget neutral manner, as discussed in the FY 2020 SNF PPS final rule (84 FR 38734). In future rulemaking, we may reconsider the adjustments made in the FY 2020 SNF PPS final rule to the case-mix weights used under PDPM to ensure budget neutrality and recalibrate these adjustments as appropriate, as we did after the implementation of RUG-IV in FY 2011.

We invite comments from stakeholders on any observations or information related to the impact of PDPM implementation on providers or on patient care."

Response: We support CMS decision to continue to monitor the impact of the PDPM implementation as it pertains to budget neutrality before making any adjustments in case-mix weights for the following reasons:

* Within the first six months of implementation of PDPM many skilled nursing and long term care facilities were managing patients diagnosed with COVID-19.

* Transmission-Based Precautions and other precautionary measures taken to limit the transmission of COVID-19 had a direct impact on care and services provided to residents/patients in the post-acute care settings.

* There is limited ability to capture patients with suspected COVID-19 on the MDS due to testing limitations and the inability to use diagnosis code U07.2 to capture cases as determined by epidemiological findings.

* There is limited ability to capture resource utilization related to patients diagnosed or exhibiting symptoms of COVID-19 since the MDS has limited ability to capture elements associated with management of COVID-19, including but not limited to:

- Isolation - disallowed when patients are cohorted.

- Fever - defined as 2.4 degrees above the baseline. Patients may exhibit temperature increases of less than 2.4 degrees and will not be reflected on the MDS.

We ask CMS consider the following:

1. Releasing preliminary data related to PDPM implementation so Skilled Nursing and Long Term Care providers and other clinicians can provide additional insight regarding the information collected.

2. Allow use of ICD-10 code U07.2 to be captured on the MDS as an alternative to method to document a patient is being treated for COVID-19. This is relevant in cases where there are false-negative PCR test, where testing is delayed or unavailable. It is also important to note that some medications and COVID-19 treatments are unavailable if the patient does not have the appropriate COVID-19 diagnosis. Allowing use of U07.2 will eliminate delays in treatment where testing is limited.

3. We also support the AHCA recommendation, that CMS permanently revise the MDS-RAI manual isolation coding guidance to permit providers to code for isolation due to infectious disease for confirmed or presumed infected when following CMS/CDC guidance at the time the SNF PPS assessment reference period reporting.

PDPM ICD-10 MAPPINGS

Page 20938: "In the FY 2020 SNF PPS final rule (84 FR 38750), we outlined the process by which we maintain and update the ICD- 10 code mappings and lists associated with the PDPM, as well as the SNF GROUPER software and other such products related to patient classification and billing, so as to ensure that they reflect the most up to date codes possible... We are proposing several changes to the PDPM ICD-10 code mappings and lists."

Response: We support the proposed changes to the PDPM ICD-10 Mappings by CMS. We ask that CMS consider also mapping U07.2 the same as U07.1. We believe this will allow for better tracking of resource utilization by patients that are being treated for COVID-19 but had a false-negative test or patients that have encountered other issues limited testing.

We also support, as recommended by AHCA, the adoption of additional proposed changes recommended by other organizations commenting (i.e. AAPACN) who have identified additional "subsequent encounter" ICD-10 codes that better describe the admission status of the SNF beneficiary than the currently permitted "initial encounter" ICD-10 codes.

We would like to thank you for the opportunity to collaborate with clinical operators and clinicians across our organization and share with you their concerns and areas of support. We look forward to providing any additional information needed to further clarify any of the comments raised.

Sincerely,

LaShuan M. Bethea, JD, M.Ed., BSN, RN

Vice President of Legislative Affairs

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Footnote:

1/ Genesis HealthCare Inc. (Genesis) is a leading provider of post-acute and long term care services operating over 343 care centers, most licensed and certified as Medicare skilled nursing facilities, in 24 states. Through our rehabilitation and recuperative support programs we facilitate the transitions from acute care and from the skilled nursing setting back to the community. On a daily basis, we meet the health services and shelter needs of over 45,000 residents who are cared for by over 46,000 employees. Assisting us in our care focus is our subsidiaries, Genesis Rehabilitation Services (GRS) and Genesis Physician Services (GPS). The over 14,000 professionals employed by GRS not only meet the needs of the GHC centers, but also provide physical therapy, speech-language pathology and occupational therapy services under contract to 1,600 locations spread across 47 states and the District of Columbia. Annualized, GRS provides rehabilitation services to over 350,000 Medicare beneficiaries. Through Genesis Physician Services, we employ over 150 physicians and 250 nurse practitioners and geriatric nurse specialists providing medical direction in our skilled nursing centers and coordinating the involvement of hundreds of attending physicians who have been credentialed to practice in our centers.

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=CMS-2020-0036-0002

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