Skilled Nursing Facility - Respiratory Therapy Services

AARC Efforts To Increase Payments for SNF Patient Care Pays Off

May 18, 2000
On April 1 the Medicare program was set to begin paying skilled nursing facilities (SNFs) the 20 percent increase promised for medically complex patients as stipulated in the Balanced Budget Refinement Act (BBRA) of 1999. Computer problems delayed the actual payment until May 18, but the changes were retroactive to April 1. The BBRA provided for the restoration of $16.4 billion over a five-year period in cuts previously made in Medicare payments to providers, including hospitals and nursing homes. Fifteen of 44 SNF resource utilization groups (RUGs), or payment categories, were included in the increase; and 12 of the 15 involve per-diem payments for the care of medically complex patients requiring non-ancillary services such as respiratory therapy. This category includes ventilator-assisted patients and others with high-acuity respiratory diseases or conditions. The other three categories relate to rehabilitation RUGs.

HCFA's case-mix study According to the updated proposed rule published in the April 7 Federal Register, payment increases will be in effect through Oct. 1, 2000 ¬ the beginning of the new fiscal year ¬ or until the Health Care Financing Administration (HCFA), which administers the Medicare program, completes a new case-mix study to permanently increase certain RUGs III payment categories. It is anticipated that the new payment structure will be in place Oct. 1 and will supercede the 20 percent short-term payment increase. At press time, the case-mix study that would be used to establish permanent payment changes was due for completion May 1. HCFA will:

SNF patients in the clinically complex category or above who have high-cost needs are now benefiting from the 20 percent across-the-board rate increases for the current per-diem pay rate. A case-mix adjustment has been incorporated into the SNF prospective payment system (PPS) to adequately provide for the Medicare patient's full range of needs based on his clinical profile.

"We are happy to see the additional Medicare payments begin, especially after the AARC and others in the nursing home industry worked so hard for two years to convince Congress that it was needed to ensure sufficient care, says Cheryl West, MHA, AARC director of government affairs.

As larger RUGs payments arrive at the SNFs, a larger per diem will be allowed for medically complex patients who need respiratory therapy. "Consequently, we expect that SNFs will see the wisdom of rehiring respiratory therapists who worked in SNFs before the advent of PPS to provide respiratory services because they are the best qualified to render that care," says West.

Background
In early 1998, prior to implementation of the BBRA, the AARC identified a problem with the underrecognized costs portion of the RUGs III categories and worked with the nursing home industry and other provider organizations to increase the insufficient RUGs payments. The AARC commissioned the 1998 Muse and Associates Study, which analyzed Medicare data from HCFA. The study proved that the reimbursement categories for respiratory patients were too low and needed reassessment to recognize the true costs of providing their respiratory care.

The AARC government affairs staff, individual Association members, and nursing home organizations worked together to make the case to Congress that payment rates were too low for medically complex patients and needed to be increased. The AARC Board of Directors recognized the need for quick-action advocacy teams to address regulatory and legislative issues that affect respiratory therapists, and thus the AARC convened an organizational workshop for the newly created Political Advocacy Contact Team (PACT).

The PACT, made up of RTs from across the country, organized grass-roots letter-writing campaigns, meetings with their congressional representatives, and other activities to call attention to the unintentional consequences of the Balanced Budget Act of 1997 (BBA), effectively putting a face on the problem of insufficient Medicare funding for Medicare recipients receiving care in SNFs. As a result of these advocacy efforts, Congress passed the BBRA last November, with President Clinton signing it into law shortly after Thanksgiving.

Just a "quick fix"
"Provisions of the updated proposed rule are considered only a quick fix for now," West points out. "The rule will only be in effect until HCFA issues further RUGs refinements on Oct. 1 in the final rule. While this temporary payment increase is a good start to solving the problems caused by BBA '97, the reparations still have not gone far enough. We will continue our efforts for as long as it takes to ensure appropriate care for respiratory patients and sufficient payment for that care."

Update on the Skilled Nursing Facility Prospective Payment System (PPS)

May 15, 2000
The Health Care Financing Administration (HCFA) published an updated proposed rule in the April 10, 2000, Federal Register to refine nursing home payments under the prospective payment system (PPS). The proposed rule would refine the Resource Utilization Groups, version III (RUGs III) to account for greater precision in the variation in costs of nontherapy ancillary services as well as the care needs of medically complex patients. To accomplish this, HCFA added new RUGs categories and developed a new index system to reflect variation of nontherapy ancillary service costs. AARC continues its analysis of the proposal and plans to submit comments to HCFA.

The Balanced Budget Refinement Act (BBRA) of 1999 mandated increased reimbursement by 20 percent for certain medically complex patients in 15 RUGs beginning April 1, 2000, through October 1, 2000, or until HCFA implements a refined RUGs system. HCFA anticipates the proposed refinements to take effect on or shortly after October 1, 2000.

Office of the Inspector General Offers Reports on SNF Therapy Limits

December 1, 1999
In August, the Office of Inspector General (OIG) released three new reports on skilled nursing facility (SNF) services. The most recently released study examined past therapy claims to determine how new therapy service caps could affect current and future nursing facility. The others looked at the effect of the SNF prospective payment system on access to care. The reports were published to the Web. To view the reports visit the OIG Web site.

AARC Wins in Washington

November 22, 1999
In the Medicare Balanced Budget Refinement Act, Capitol Hill has not only increased payments for many RUGs categories that include respiratory services, but at the AARC's recommendation, it has also included a plan to study competency of respiratory service providers.

The AARC has been telling legislators for many months that Medicare beneficiaries may be facing unnecessary life or death situations in skilled nursing facilities. This can happen when they receive respiratory care from health care providers who are not respiratory therapists and therefore do not have to document their competency in delivering respiratory services.

Congress recognized the validity of our complaints and in the end shared our concern. The act states that "there is some evidence suggesting that the quality of respiratory care provided to Medicare beneficiaries in skilled nursing facilities is varied and, in some cases, inadequate."

Section 107 of the refinement act, HR 3426, has met our government's concern, says AARC Executive Director Sam Giordano, by requiring the Secretary of the Department of Health and Human Services to report on whether the Medicare program should require competency examinations or certification for respiratory care providers. The report must be delivered to Congress within 18 months of enactment of this legislation. The final verbiage of HR 3426, Section 107 is provided here for your review.

Giordano says much of the evidence that confirmed Capitol Hill's conclusions about this issue came by way of the AARC's recently released outcomes study. That study showed, for example, that lung patients who received care from a respiratory therapist in a skilled nursing facility had a 42% lower death rate than those patients cared for by other healthcare providers.

Researchers at Muse & Associates came to this and other conclusions after examining 1996 Health Care Financing Administration data for Medicare beneficiaries diagnosed with lung disorders. The study also revealed evidence that care delivered by respiratory therapists produces not only improved patient outcomes, but also significant cost savings. Medicare patients who received respiratory services from RTs during their initial skilled nursing facility stay cost Medicare $97.9 million less per year based on shorter lengths of stay.

"The results of the study show beyond doubt that there is a difference in quality and cost of care when it is given by respiratory therapists," says Giordano."But the key message here is that our government is finally taking steps to ensure that Medicare beneficiaries have access to safe and competent health care," he says. "It's a definite victory for Medicare patients and for the respiratory therapy profession. I'm pleased the AARC played such a key role in this success."

James H. Maloney (D-CT) Writes to Chairman Thomas

October 12, 1999 (received, on letterhead)

The Honorable William M. Thomas
U. S. House of Representatives
2208 Rayburn
Washington DC 20515

Dear Congressman Thomas,

I am concerned about ensuring that seniors receive quality respiratory care from qualified, competent, and properly trained individuals.

Unfortunately, certain aspects of the Medicare Prospective Payment System for Skilled Nursing Facilities (SNF-PPS) have created unintended consequences for Medicare beneficiaries. The safety and care of the nursing home residents requiring respiratory therapy services is important to all of us.

Nursing home facilities have the discretion to determine which health care provider will render medical services. Currently, Medicare standards do not require that health care personnel document their competency in the respiratory services they are asked to provide. The new SNF-PPS creates financial incentives for some facilities that are not (underlined) qualified to provide specific and specialized health care services.

In the absence of competency standards, patients requiring therapy services are being put at risk. Indeed, respiratory therapy is a life-sustaining treatment. If this therapy is improperly performed, the patient could be seriously harmed or killed.

The Health Care Finance Administration (HCFA) does not exercise regulatory authority to require competency standards for respiratory therapy services. Therefore, with no competency requirements requiring respiratory therapy, seniors will remain at risk.

For these reasons, I request that you incorporate legislative language in your anticipated legislation regarding reform of the Balanced Budget Act 1997 that requires documentation of competency for those individuals who provide respiratory therapy. Your efforts are needed to secure the life-critical services of respiratory care for seniors. Please contact me or Mark Carrie of my staff at 225-3822 to find an expeditious solution to this situation.

Yours truly,
James H. Maloney
Member of Congress

Cc: The Honorable Pete Stark
Ranking Member, Subcommittee on Health, House Commerce on Ways & Means

AARC Maintains Focus on SNF PPS Flaws

October 25, 1999
AARC Director of State Government Affairs Jill Eicher recently sent a message to our Political Advocacy Contact Team -- the AARC's grassroots network -- in an effort to address some particular questions about the Association's fight against elements of SNF PPS.

Because I think many AARC members have similar questions, I am posting portions of that letter here:

As we continue to keep you apprised of the House and Senate legislation revising the Balanced Budget Act (BBA) of 1997, we want to update you on all our efforts regarding changes to the SNF PPS. Although much of our focus is on the competency requirements for individuals performing respiratory therapy in SNFs, the AARC is also working to increase funding for specific RUGs that impact respiratory patients.

In this regard, the Senate's proposal currently includes a 25 percent add-on to the reimbursement rate for six RUGs that cover many respiratory patients. This proposed add-on would run from April 1, 2000 to October 1, 2001.

Our efforts to increase funding are assisted by other organizations that are also lobbying Congress on this issue. The AARC is able to use coalition activities to support our recommendations. The AARC's request for competency requirements within SNFs, however, is unique to your profession, and no other organization is focusing on this issue. Success in obtaining a provision for a study on respiratory competency requirements in the Senate is due solely to our members' efforts in supporting AARC's goal.

Please continue contacting your Senators and House Representatives about the SNF PPS issues discussed here. And don't hesitate to call the Executive Office or our Washington Office for advice. Every legislator contacted helps further our cause and pushes AARC and the RT profession closer to achieving its goals.

AARC Wins Senate Finance Committee Support for RT Competency Requirements

October 20, 1999
As you know, the AARC has been working to temper the effects of the Balanced Budget Act of 1997 (BBA) on respiratory therapy services in skilled nursing facilities (SNFs). On October 14, 1999, our efforts were rewarded. Senator William Roth, chairman of the Senate Finance Committee, included a respiratory therapy provision in the Senate Finance Committee legislation to amend the BBA. This provision calls for a year-long study of respiratory therapy competency in SNFs.

The AARC has been successful in getting the attention of the Senate Finance Committee and proving the point that these services may not be properly delivered by health care professionals who do not demonstrate competency in respiratory therapy. Be we still have work to do!

The House of Representatives also has a bill to amend the BBA; however the provision calling for the competency study is not in the House version. We must urge members of both the House and Senate to keep the wording for the respiratory competency study in the final BBA adjustment acts.

Letters must be generated on this issue. You can immediately e-mail them from the AARC Capitol Connection, but IT IS IMPORTANT TO FOLLOW THIS E-MAIL WITH A HARD COPY OF A LETTER OR TELEGRAM. This shows the member of Congress that you feel strongly about this issue and are willing to take the time to write and mail a letter.

If you have any questions about this process, you may contact either Kris Williams at williams@aarc.org or Cheryl West at west@aarc.org.

AARC Joins Care Providers September 22 to Ask Lawmakers to "Save Our Seniors"

September 20, 1999
The AARC will join with hundreds of caregivers to descend on Capitol Hill, September 22, to urge congressional representatives to support the Hatch-Domenici-Kerrey-Daschle Bill (S.1500). The bill helps restore recent Medicare cuts for skilled nursing care to help "save our seniors."

The AARC will be there to educate legislators about the 1998 and 1999 Muse & Associates studies. These studies support our contention that Medicare patients' access to respiratory services has been hampered severely and also reinforces the need for Bill S.1500's implementation.

S.1500 will return the essential funding to the reimbursement system and provide nursing homes with the ability to continue to use the respiratory therapist in providing critical respiratory therapy services to Medicare beneficiaries.

Senators Introduce Nursing Home Legislation

September 9, 1999
Judiciary Committee Chairman Orrin Hatch (R-UT) and Budget Committee Chairman Pete Domenici (R-NM) introduced the "Medicare Beneficiary Access to Quality Nursing Home Care Act of 1999." The bill (S. 1500) redefines the skilled nursing facility (SNF) prospective payment system (PPS) process to help resolve some of the unintended consequences of the Balanced Budget Act of 1997.

S. 1500 indicates that Medicare beneficiaries are experiencing decreased access to SNF services due to inadequate reimbursement under the PPS. In addition, the legislation states that the Health Care Financing Administration (HCFA) indicated that the SNF PPS does not accurately account for costs associated with providing medically complex care (non-therapy ancillary services and supplies, including some types of respiratory therapy). Futhermore, HCFA claims that the SNF PPS will be unable to properly account for such costs under the system due to Y2K problems.

S. 1500 mandates an increase in the federal per diem rate through a payment add-on to services in the RUGS III category provided on or after October 1, 1999, and before October 1, 2001. This date may be changed when the Secretary the Department of Health and Human Services (HHS) implements a case mix methodology that takes into account adjustments for the provision of non-therapy ancillary services and supplies such as drugs and respiratory therapy.

For a complete copy of the bill, visit the Web site: http://thomas.loc.gov/. Type "S1500" in the bill number search area.

OIG Early Report on Effect of PPS on Access to SNFs Confirms AARC's Position

September 2, 1999
In August, the Office of the Inspector General released "Early Effects of the Prospective Payment System on Access to Skilled Nursing Facilities." Although the document states that Medicare beneficiaries have no access problems to skilled nursing facility care, it does report that patients who need more extensive services are becoming more difficult to place. AARC made comments to HCFA last year that emphasized this eventuality. The document says that those Medicare beneficiaries "who require intravenous feedings, intravenous medications, tracheostomy care, or ventilator/respirator care" were reported by discharge planners as "more difficult to place in the past year."

This early report coupled with the 1999 Muse & Associates study collaborate the AARC's position that Medicare beneficiaries with diseases of the lung need to the services of competent respiratory therapists. A complete story on the Muse Study and more details about the Office of the Inspector General's early report are available online for your review.

HCFA Releases Final Rule for SNF PPS

August 6, 1999
The July 30, 1999 Federal Register contains the Department of Health and Human Services Health Care Financing Administration's (HCFA's) Final Rule and Notice for Prospective Payment System (PPS) and Consolidated Billing for Skilled Nursing Facilities (SNFs). The document is available in the July 30 Federal Register. The text only version of the file is also available. (Please remember that links to the Federal Register may take several minutes to connect.)

The American Association for Respiratory Care made comments on the proposed policy in August 1998, before the HCFA deadline. While no substantive changes were made in the Final Rule regarding respiratory therapists or therapies, HCFA did acknowledge AARC comments and promised to continue researching respiratory therapy.

In the Final Rule, HCFA says:

We received a number of comments regarding the treatment of respiratory therapy services under the RUG-III. Several comments expressed concern that facilities would be using inappropriately trained nurses rather than appropriately trained personnel to provide respiratory therapy services.

HCFA's response to those comments is that they share these concerns and will "monitor closely the provision of SNF care, including respiratory treatments."

Furthermore, HCFA states that "we currently have no evidence that unqualified personnel are administering respiratory treatments."

AARC Call for Stories of Substandard Care

"As a result of this statement," says Sam P. Giordano, AARC Executive Director, "it becomes clear that we must continue to document situations that point to inadequate care being delivered to patients." The AARC has attempted to gather evidence where patients in SNFs are receiving substandard care as a result of the exodus of RTs from the SNF environment.

If you have such anecdotes or reports, please forward them to Kris Williams at the AARC, 11030 Ables Lane, Dallas, TX 75229.

"With the publication of this Final Rule, it becomes more clear that our next action must be to push this through with a Bill or other legislation," says Giordano. "While this is a strategy that has been in play for some time, hope for remediation in the final HCFA regulation is behind us.

"However we will continue to work with HCFA to ensure that respiratory care patients are receiving the best possible care and push for documentation that personnel delivering respiratory therapy services are competent."

AARC Submits Written Testimony to Senate Finance Committee Hearing

June 10, 1999
 The AARC submitted Written Testimony on the Implications of the Balanced Budget Act (BBA) of 1997 for Beneficiaries and Providers in Medicare's Traditional Fee-for-Service Program. This testimony was submitted to the Senate Finance Committee Hearing on June 10, 1999.

The primary purpose of this testimony was to bring to light the implications of the prospective payment system for skilled nursing facilities on respiratory therapy. The testimony focused on the AARC's three main concerns to

  1. Assure Medicare beneficiaries access to safe and effective respiratory therapy.
  2. Assure that all persons providing respiratory therapy meet minimum competency standards.
  3. Assure fair reimbursement

AARC President-elect Garry Kauffman Presents RT Outcomes Data at HCFA's Town Hall SNF Meeting

April 27, 1999
Congress has begun to focus on the devastating consequences that the implementation of a flawed Medicare prospective payment system (PPS) for skilled nursing facilities (SNF) has had on providers, consumers, and healthcare professionals. To get a clear idea of these consequences, Congress directed HCFA to hold an all-day Town Hall Meeting, so the public could have an opportunity to present to HCFA staff their concerns.

While hundreds attended the meeting, only a handful of organizations representing specific interests were invited to be panelists and to make formal presentations. HCFA staff asked the AARC to be on one of the panels and to present our position on respiratory therapy issues.

Garry W. Kauffman, RRT, president-elect of the AARC, focused on two points. The first related to our concerns with the substitution of the respiratory therapist by other healthcare providers who are not required to document their competency in respiratory therapy. The second issue Kauffman presented was that preliminary data from an AARC commissioned study shows that respiratory therapists do, in fact, have a positive impact on patient outcomes. This data further supports the AARC's position on using respiratory therapists.

The other panelists presented their concerns about issues ranging from low Medicare payments for medications to the $1,500 reimbursement cap cutting off care the the sickest patients. AARC was one of the very few panelists to present hard data to HCFA staff.

HCFA made no responses Friday to the issues presented at the meeting. However, after the AARC's outcomes-study report is finalized (within the next few weeks), we will meet with HCFA to more formally present our position and to explain the study's results in much greater detail.

AARC President-Elect to Present SNF PPS Data at HCFA Meeting

April 16, 1999
AARC President-Elect Garry Kauffmann will sit on a panel in an upcoming open town hall meeting to discuss the skilled nursing facility (SNF) prospective payment system (PPS) and the quality of care in nursing facilities. The Health Care Financing Administration's (HCFA) meeting will be held at the HCFA headquarters auditorium April 23, 1999 from 8 a.m. until 5 p.m. E.D.T.

As one of the panel members at this meeting, Kauffman will have the opportunity to give a brief presentation illustrating the AARC's concerns about the compromised respiratory services being delivered in many SNFs across the country.

HCFA says they called this meeting to provide health care professionals and other interested groups a forum to ask questions and raise concerns about SNF PPS and the quality of care in SNFs. Although the agency will not be accepting additional comments on the interim final rule for the SNF PPS (AARC submitted our comments in August 1998), HCFA says the meeting represents one aspect of the evolving process for making their payment, coverage, and quality reviews more open and responsive to the public.

The meeting will address the following topics:

SNF Horror Stories Impress Chairman of Senate Finance Committee

April 14, 1999
Senate Finance Committee Chairman Bill Roth (R - DE) has asked the AARC to draft "legislative language" that could be used in potential legislation which would effectively address the lack of respiratory therapy competency requirements in skilled nursing facilities. This development is especially significant because the Senate Finance Committee is the influential "gatekeeper" of Medicare legislation in the Senate.

The request occurred soon after Delaware Society President John Rendle and several other respiratory therapists (RTs) met with Senator Roth's key health staffer about the quality of care skilled nursing facility (SNF) patients are receiving in the absence of RTs. This is an issue the AARC has been encouraging its membership to press with Congress for many months, and AARC government affairs director Cheryl West helped ensure the Delaware therapists had the information they needed to make a strong impression at the meeting.

Rendle and his colleagues went to Senator Roth's office armed with stories of serious medical errors made by unqualified caregivers attempting to deliver respiratory care to patients who should have had the attention of skilled RTs. In some cases these errors led to patient deaths. These tragic stories impressed upon Senator Roth's assistant the grave situation facing many skilled nursing facility patients who are not receiving the competent, quality respiratory care they deserve.

Soon after this meeting, the Senate finance health staffer contacted AARC Director of Government Affairs Cheryl West on behalf of Senator Roth. The health staffer from Senate Finance Subcommittee requested the "legislative language" from West. Although this development is by no means a final step in assuring competent care for SNF patients, it is a very positive step in that direction. With Senator Roth's support, legislation presented to address the competency of care issue should be well received by Congress.

The implementation of the SNF prospective payment system (PPS) has brought with it many new challenges; however, the most crucial of these is to guarantee SNF respiratory patients they will receive care from qualified, competent professionals. Sadly, thus far this has not been the case for many such patients. Thanks in part to the recent efforts of RTs in Delaware, however, regulations may soon be forthcoming. Watch the next issue of the Times for a feature story on this encouraging development.

AARC Comments on Compliance Program for SNFs

April 7, 1999
Earlier this year the AARC issued formal comments to the Office of the Inspector General (OIG) regarding the OIG's proposed compliance program for skilled nursing facilities.

While the AARC commends the Office for proposing a compliance program, we are at the same time concerned that the proposed plan may not guarantee the provision of quality respiratory therapy services in SNFs. One section of the OIG plan focuses on "effective training and education programs." This section was of particular interest to the AARC and our comments to the OIG focused on how that section of the plan should be improved. Our primary concern is that only health care workers who have been tested for competency be hired to deliver respiratory therapy. The Association outlined for the OIG very clearly what we believe should be the competency requirements for health care workers delivering respiratory therapy.

The AARCs complete comments to the OIG are available here for your review.

Senate Budget Committee Report Notes Concern About Access to Care in SNFs, Outpatient Therapy

March 31, 1999
AARC efforts to educate Congress about shortcomings in the skilled nursing facility (SNF) prospective payment system (PPS) are beginning to pay off. The Senate Budget Committee issued its report recently and in it include reference to the fact that allocation of additional funds for SNF non-therapy ancillary care might be necessary.

The AARC, along with a coalition of other groups considered to be a part of the non-therapy ancillary services component of PPS, lobbied Congress for a pass-through of those payments. Working through this coalition and through MedPAC, a Medicare oversight committee that reports to Congress, the AARC pushed for this provision. The exact language used in the Senate Budget Committee report sends a clear message that there need to be investigations done to assure that patients are receiving the quality care they need, particularly in terms of skilled nursing facilities and outpatient therapy.

"The Committee notes that the Medicare policy changes in the Balanced Budget Act have produced saving in excess of those estimated at the time of its enactment in some areas. While the Committee recognizes the value of these to Medicare solvency, the committee is concerned about the effect of these policy changes on Medicare beneficiaries, access to services. Particular areas of concern include access to skilled nursing, outpatient therapy, and payment rates for Medicare + Choice plans. This Committee urges the Committee on Finance to examine access to Medicare services and if problems are found, this Committee pledges to assist in identifying resources to address such problems in a manner consistent with this Committee-reported resolution."

This development shows that our words have not been falling on deaf ears. For nearly a year, the AARC has repeatedly met with members of Congress armed not only with anecdotal evidence of flaws in the SNF PPS, but also with hard numbers. The AARC and a group representing pharmacists were only non-therapy ancillary services that had data showing that HCFA incorrectly calculated the costs of services provided to SNF patients. The AARC is pleased to report that our study done by Muse and Associates has helped steer Congress to consider that Health Care Financing Administration numbers were incorrect.

While the Senate Budget Committee's report is non-binding on other committees, it sends a clear message and will hopefully have an impact on the final proposed budget. This report is an encouraging step forward, but it is nevertheless only the first step of many that must follow before the necessary changes to the SNF PPS are finalized. Within the next few weeks, the Senate and House of Representatives approved budget reports should be released; ideally, both will incorporate the language from the Senate Budget Committee report dealing with non-therapy ancillary services. From there, the House and Senate must agree upon the actual dollars to be allocated to the provision, and then of course Congress must vote on the entire proposed budget. It remains to be seen exactly what the SNF non-therapy ancillary care provisions will be; however, the proposed budget for next year should be approved and ready to take effect beginning October 1 of this year.

AARC Member Bill Rettinger Sparks Congressman Letter

February 22, 1999

Here is yet another example of how one member's efforts can make a significant impact: AARC member and Chapter Three Director of the Florida State Society Bill Rettinger pursued with his Congressman the issues of patient safety and competent healthcare, and he got results.

Earlier this year Rettinger had a chance meeting with his Congressman, E. Clay Shaw, and took the opportunity to bring to Congressman Shaw's attention that thousands of respiratory therapists had been put out of work unintentionally by the skilled nursing facility prospective payment system and that the professional competency requirements outlined by HCFA for healthcare workers giving respiratory therapy were dargerously lax. This encounter led to an official meeting with Congressman Shaw during which Rettinger along with Bill Lindahl, CRTT, Frank Schambeck, RRT, and Mikki Thompson, FSRC President Elect, were able to communicate the urgency of this matter and encourage Congressman Shaw to act.

Success came in the form of the following letter sent from Congressman Shaw to William M. Thomas, the chairman of the House Committee on Ways and Means' Subcommitte on Health. This letter is another great example of how RTs nationwide can help turn the tide where safe provision of respiratory therapy is concerned for Medicare patients.

Follow the example set here and communicate your concerns to your Congressmen -- you never know what your input might lead to.

February 1, 1999

The Honorable William M. Thomas
Chairman, Subcommittee on Health
House Committee on Ways and MEans
2208 Rayburn House Office Building
Washington, DC 20515

Dear Bill,

I am concerned with ensuring that Medicare seniors receive respiratory care from qualified competent and well-trained individuals.

Last week, I met with respiratory care professionals in my district office regarding the limited training tat is acceptable under Medicare's current definition of "qualified" respiratory care givers. For the treatment of such life threatening conditions of respiratory failure, I believe it is vitally important to maintain high standards.

It seems to me that this problem could be remedied by the addition of a more narrow definition pertaining to individuals qualified to administer respiratory therapy. Because respiratory therapy organizations have tried unsuccessfully to go about this at the regulatory level with HCFA, I think this issue deserves congressional consideration.

As you draft Medicare reform legislation, I ask you look further into the quality of respiratory care for the Medicare population.

Sincerely,

E. Clay Shaw, Jr. Member of Congress

AARC Urges Members to Write Congressmen

February 8, 1999
The Medicare Prospective Payment System (PPS) for Skilled Nursing Facilities (SNFs) calls for action from all levels of the respiratory profession. The AARC is at work in Washington, D.C., and again urges you, the membership, to write letters to both your Senators and your House of Representatives member.

As you are well aware, the implementation of the SNF PPS has resulted in negative repercussions in both the quality of patient care provided in nursing homes, as well as in the employment of respiratory therapists in these facilities. Part of the AARC's overall strategy to combat the decrease in the quality of respiratory therapy services that are provided by nursing homes is to require nursing homes to meet minimum competency standards for those individuals providing respiratory therapy services in SNFs.

After meeting several times with HCFA, it is clear that the agency lacks the authority to quickly implement competency requirements for nursing homes. It will be necessary for Congress to legislate such an authority. But in order for members of Congress to support a legislative effort, it is necessary for them to hear from their constituents--you.

Your input on this matter is both valuable and necessary--please know that one person can make a difference. Please share this appeal with your colleagues, and encourage them to take action. There is strength in numbers, and the Association needs their support as it needs yours.

Because form letters have little impact, we are providing you with an outline of points that should be included in your letter. We have also prepared a synopsis of the issue which you should include as an attachment to your letter.

Through efforts of the AARC and other groups, Congress is aware that there are many flaws in the SNF PPS. With your help, we can focus their attention on respiratory therapy. Thank you for your help. If you have any questions do not hesitate to contact AARC Director of Government Affairs Cheryl West by phone (703/548-8506), fax (703/548-8499), or email (west@aarc.org).

AARC Meets with Senate Finance Health Subcommittee

February 5, 1999
Earlier this week AARC representatives met with members of the Senate Finance Health Subcommittee to make them aware of the unintended, yet very dangerous, consequences of the skilled nursing facility (SNF) prospective payment system (PPS).

AARC Executive Director Sam Giordano and AARC Director of Government Affairs Cheryl West communicated the Association's concerns about the quality of care being compromised as facilities look for ways to cut costs under the system put in place last month for SNFs. Giordano and West explained that the solution to this problem is to assure patients are receiving respiratory care services from qualified, competent healthcare professionals and asked that the Senate Finance Committee pass a change in Medicare law that would require any healthcare provider of respiratory services to document competency to deliver that care.

Government officials made clear their mutual concern about the issues as presented. However, in order for sweeping changes to be made, the committee must see concrete outcomes data. The AARC commissioned various outcomes-focused studies last year and is currently gathering the results and other research information that should satisfy the committee's request.

A Subcommittee staff member described her encounter with Association representatives as "a good first meeting" and looks forward to getting more information from the AARC so the issues raised can be addressed further.

In the meantime, we encourage you, AARC members, to remember what a strong impact individuals can make in situations like this. Check the list below and find out if your local senator is a member of the Senate Finance Health Subcommittee. If so, contact his office directly. Senators tune their ears to what their constituents have to say, so express to your senator your concerns about the quality of care being compromised in SNFs. Making your voice heard from the local level bolsters everything the Association endeavors to accomplish on Capitol Hill.

Senate Finance Health Subcommittee Members:
(the U.S. Senate website has details on how to reach these senators)

John H. Chafee (RI) Chairman

Max Baucus, (D-MT)
John Breaux, (D-LA)
Richard H. Bryan, (D-NV)
Kent Conrad, (D-ND)
Bob Graham, (D-FL)
Phil Gramm, (R-TX)
Charles E. Grassley, (R-IA)
Orrin G. Hatch, (R-UT)
James M. Jeffords, (R-VT)
J. Robert Kerrey, (D-NE)
Don Nickles, (R-OK)
John D. Rockefeller IV, (D-WV)
William V. Roth, Jr., (R-DE)
Fred Thompson, (R-TN)

AARC to Comment on OIG Nursing Home Fraud and Abuse Guidance

January 27, 1999
The AARC plans to submit comments to the Office of Inspector General (OIG) regarding its ongoing concerns over the lack of competency standards for individuals providing respiratory care in nursing homes. The OIG is seeking recommendations on the development of a compliance program "guidance" for the nursing home industry. This "guidance" will represent recommendations and suggestions from the OIG and the private health care community on how providers can establish internal controls and monitoring procedures to identify, correct and prevent fraudulent and wasteful activities in nursing homes. Adherence to this "guidance" is not mandatory, nor does it represent all elements of a compliance program.

The OIG anticipates that the nursing home guidance will contain seven elements that the OIG considers necessary for a comprehensive compliance program including:

The OIG's request for recommendations appeared in a December Federal Register notice. Comments are due to the Office of Inspector General, Department of Health and Human Services by February 16, 1999.

AARC Meets with Senate Special Committee on Aging

January 22, 1999
Through American Association for Respiratory Care (AARC) initiatives, the Association was able to secure a meeting yesterday with representatives from the Senate's Special Committee on Aging. AARC Executive Director Sam Giordano and AARC Director of Government Affairs Cheryl West met with Committee staff member Rebecca Jones and other Committee representatives to discuss the issue of patient safety for the elderly.

The AARC educated Committee staff members about our specific patient safety concerns, citing Medicare Payment Advisory Commission Chair Gail Wilensky's words from her response to the skilled nursing facility (SNF) prospective payment system (PPS). Wilensky told Nancy-Ann Min DeParle of the Health Care Financing Administration that, among other problems the system creates, "the shift from cost-based payment to prospective rates also creates financial incentives for SNFs to stint on the care they furnish. . . ." and that the system would create "incentives to . . . deny admission to patients who appear to have special needs."

Giordano and West explained to Jones what is currently happening in the SNF industry in response to PPS. Among the specific concerns shared with Jones were the ever-increasing occurrences of unqualified clinicians replacing respiratory therapists and the appearance of bogus training programs that supposedly prepare substitute care givers to administer respiratory therapy. Association representatives explained how the AARC defines competent care and told many horror stories from RTs who witnessed the fallout from incompetent clinicians trying to successfully administer respiratory therapy.

The Association's foremost goal for this meeting was to make this influential committee aware of the specific problems created by SNF PPS and to discuss possible remedies for those problems. We recommended to the Committee that a set of minimum competency standards be upheld in SNFs for anyone hired to administer respiratory therapy. Jones and her colleagues were receptive to our message and intend to do what they can to influence HCFA on our behalf.

ACCP Supports AARC Message to HCFA

January 19, 1999
The American Association for Respiratory Care (AARC) makes ongoing efforts to impress upon the Health Care Financing Administration (HCFA) the significance of the flaws in the proposed skilled nursing facility prospective payment system (SNF PPS)--and a boon of support for the AARC's cause came late last year from the American College of Chest Physicians (ACCP).

The ACCP sent a letter to HCFA stressing their concern about the quality of patient care being slighted by not recognizing in the proposed SNF PPS the unique qualifications of respiratory therapists (RTs). In that regard the College sent HCFA a copy of their Respiratory Care Section Position Statement which touts the extensive education and training received by RTs. The statement makes clear the vital role RTs play in the healthcare system and how RTs can help assure quality and safety in patient care.

HCFA will be reviewing ACCP's input as well as that from the AARC and other concerned groups and will release final regulations later this year. The Association will keep you apprised of further developments as we become aware of them.

SNF PPS: How It Happened

January 18, 1999
AARC Director of Government Affairs Cheryl West gets many questions about how Medicare PPS for Skilled Nursing Facilities developed into what we have today. Here she provides a document that gives a good background on the creation of SNF PPS. The following backgrounder was taken from a recently released HCFA work plan regarding future SNF PPS research studies and has been slightly edited for clarity.

The Balanced Budget Act of 1997 (Public Law 105-217) -BBA-requires the development of a Prospective Payment System for Skilled Nursing Facilities (SNFs), as well as, payment systems for other post acute care components: home health and rehabilitation facilities. These mandates reflect the policy and programatic concerns regarding the growth in Medicare payments, and number of beneficiaries using SNFs.

Since 1986, Medicare payments to SNFs have increased, on average, 35 percent annually. Between 1990 and 1994 Medicare payments for SNFs rose from $2.5 billion to $11.7 billion (Pro PAC 1997). SNF outlays now represent about 9% of the total Part A expenditures (up from 1% in 1986). This increase reflects an increase-nearly doubling the number of beneficiaries using SNFs, as well as the number of days of use (i.e., the number of beneficiaries using SNFs doubled from 638,000 to 1.1 million, and the total number of days increased from 25.1 to 40.2 million). The increase in the number of SNF user's is growing, almost 10 percent annually, and the rate of increase does not appear to be slowing.

Medicare has reimbursed post acute care providers on a cost basis. Skilled nursing facilities have been paid on the basis of routine operating costs (up to a per diem limit). Ancillary costs, including prescribed medications and therapies were paid on a reasonable cost basis. Capital costs were paid for as a pass-through. While much of the growth in SNF utilization and spending was due to the changes in coverage guidelines, the more recent growth in SNF payment has also been affected by increased provision of ancillary services. Part A payments for ancillary services represents a substantial portion of the total SNF spending. Almost half of the SNF payments in the mid 1990's were for ancillary services (CBO, 1995).

Ancillary costs such as skilled physical, occupational, respiratory and speech therapy, diagnostic services necessary supplies and equipment (including prescribed medications) were not included in the cost limits. Prior to the implementation of the BBA provisions for SNF PPS, ancillary services were paid on a facility specific cost basis, with no limits. Ancillary costs can increase the overall cost of SNF care. SNFs can and do cite ancillary costs to justify exceptions to routine service cost limits, thus ultimately increasing payments for routine services. Most ancillary services are billed under Medicare Part A, but if services are not directly provided by the SNF, some of the services can be reimbursed under part B.

As the number of beneficiaries receiving care in skilled nursing homes and the programatic cross increased, so did the interest in reforming the payment systems for this benefit. Measuring the Medicare case-mix and relating reimbursement to the care requirements of the patient became the avenue of choice for payment reform.

The BBA moved skilled nursing facilities services into a prospective payment system in July 1998. As facilities transition into PPS, SNFs will receive a per diem payment based on a bland of national and facility specific payment amounts. Payments will bundle all services including nursing, rehabilitation therapy and other services into a single per diem amount. In addition, the BBA provisions included a consolidated billing mandate that will require all claims for services delivered in the SNF (including Part B) to be submitted by the SNF. These provisions are expected to better delineate the treatment cost for beneficiaries within nursing homes and constrain the growth in ancillary care.

Case Mix: RUG-III

In 1989, HCFA began a multistate demonstration in four states (Kansas, Maine, Mississippi, and South Dakota) to implement Medicaid nursing home case mix systems. In addition, these states, along with Texas and New York were also implementing a case mix Medicare system, RUG -III classification system. This system was designed using resident characteristics and wage weighted staff time (Fries el al, 1994). Resident characteristics were derived from the Minimum Data Set (MDS), which assessed resident functional status to develop plans of care. The staff time required to care for groups of residents was measured over a 24-hour period for nursing staff and over the span of a week for ancillary services.

Data collected using the MDS included not only socio-demographic variables, but also a number of more clinically focused variables including: degrees of physical dependence, active medical diagnoses, and level of cognition function.

The RUG-III system sorts patients into groups based on selected clinical conditions. Within each group, patients are further sorted according to the number and types of services used and the patients functional status. A number of services were excluded in the RUG-III system, including dental and laboratory services, prescribed medications and equipment. Medicare patients are assessed for the purpose of RUG assignment shortly after admission and periodically during their SNF stay (day 5, 14, 30, 60, 90, and as a result of any significant medical change).

The RUG hierarchy or classification system has evolved over time. Initially RUG-II, a small demonstration that analyzed SNF residents in one state, Connecticut, created the initial five major clinical categories: heavy rehabilitation, special care, clinically complex, severe behavioral and reduced physical function. The RUG-II methodology was adopted and further tested using five states with high Medicare occupancy. The majority of categories were maintained, however, additional categories were added to refine the heavy rehabilitation category. There were a number of systematic issues that arose after the development of the RUG-II classification system. These included:

Based upon the population and staff time data, and the availability of a larger example (the demonstration states), another categorization study began, RUG-III. A new hierarchical category was created, reflecting the changes in the resident population, i.e., the extensive care category. This category include those residents who are expensive to treat, i.e. those requiring respirators or ventilation care, parenteral feeding, suctioning, or tracheostomies. While this category was added to reflect the population characteristics, the number of residents that were categorized as requiring the most costly care, extensive care, was extremely small. The sample size and the limited number of MDS assessments for this population limited additional analysis and categorization on this group.

Building upon the RUGs case mix experience and reliance upon a system that classified patients into groups, and using the groups to create and implement a payment system is challenging. There are differences in the services used across facilities and changes in the population and treatment required for various segments of the nursing home population. In addition, the impact of including selected ancillary services that were excluded from the case mix analysis under the demonstration project is not clear.

MedPac Acknowledges AARC Concerns

December 29, 1998
Earlier this year, the AARC sent a letter of concern about Medicare personnel requirements to Gail Wilensky, chair of MedPac, the Medicare Payment Advisory Commission. The complete letter AARC President Cindy Molle sent to Wilensky is available here for your review.

The AARC has received a reply from Wilensky in response to the recommendations we made to MedPac. Wilensky acknowledged our concerns about the quality of care being given in SNFs and assured us the Commission shares those concerns and will consider our comments carefully.

MedPac is an independent government agency created by Congress to review the various reimbursement structures for Medicare benefits and to report their findings to Congress. The Commission has been particularly focused on the impact that prospective payment systems have on beneficiaries and suppliers. Congress relies heavily on the recommendations made by MedPac, so as part of AARC's strategy to attack the SNF PPS issue from all angles, we are asking MedPac to review possible quality issues resulting from PPS in SNFs and the impending implementation in Outpatient Services and Home Health.

AARC Member Letter to Congressman Leads to Meeting with HCFA

December 11, 1998
Prompted by a letter and phone call to Senator Tom Daschle's (D-SD) office by AARC member Bill Roberts, members of Sen. Daschle's health staff saw a definite need for the issue of assuring competency of care givers providing respiratory therapy in skilled nursing facilities (SNFs) to be addressed directly with HCFA.

At a meeting Monday, representatives from the American Association for Respiratory Care (AARC) and from Sen. Daschle's office discussed the competency issue with Health Care Financing Administration (HCFA) staff members.

In discussing the issue of competency requirements for care givers providing respiratory therapy, the AARC's primary question to HCFA was, "How can you guarantee quality respiratory therapy will be administered in SNFs when some facilities have a financial incentive under PPS to use inappropriate personnel to deliver that care?"

The AARC urged HCFA to establish requirements for SNFs that would ensure the facilities were hiring appropriate, qualified personnel to deliver respiratory care to their patients. According to West, HCFA appeared somewhat sympathetic to the issue, but she noted that without further legislative authority, for HCFA to make any changes in competency requirements could take years.

Their suggestion, and one the AARC has been pursuing for some time, was to push for the introduction of legislation that would require nursing home staff to meet competency requirements in order to provide respiratory therapy services in SNFs. To that end, please send letters to your senators expressing your concern about assuring competency of care givers providing respiratory therapy in SNFs. As you have seen by Bill Robert's example, one person's input can make a difference.

SNF PPS Problems Brought Before Congress and Administration

October 28, 1998
The National Association for the Support of Long Term Care (NASL), of which AARC is a member, expressed to Congress and the Administration its strong support of the inclusion of a non-therapy ancillary pass through in the budget package. The concept received broad support in the 105th Congress, however it was ultimately not included due to the industry not reaching a consensus on implementation specifics before the session's close.

While it is disappointing that legislative efforts on this issue failed, the industry took a step forward in presenting its concerns about the inadequacy of the PPS reimbursement rates for the non-therapy ancillary products and services and in helping Congress and the Administration recognize the necessity of a pass through for such products and services.

Copies of the following letter were sent to Senators Harkin (D-IA), Hatch (R-UT), Roth (R-DE), and Lott (R-MS), as well as to Congressmen Thomas (R-CA) and Archer (TX).

Dear Senator:

In the waning hours of the 105th Congress, the National Association for the Support of Long Term Care (NASL) would like to thank you for your leadership in the area of skilled nursing facility prospective payment. We would like to stress our support for a pass through of all reasonable costs associated with the provision of non-therapy ancillary products and services.

A flaw in the skilled nursing facility prospective payment system's (PPS) case-mix methodology means many Medicare beneficiaries, particularly the more frail and elderly, may not receive appropriate access to quality health care services. This is due to the fact that the proposed Resource Utilization Group (RUGS III) system fails to appropriately account for the costs of these services.

NASL appreciates your efforts to help resolve this issue and encourage you to support a pass through for all reasonable costs associated with the provision of non-therapy ancillary products and services.

Sincerely,

Peter Clendenin
Executive Vice President
National Association for the Support of Long Term Care

AARC Submits Comments on SNF PPS Interim Regs

September 15, 1998
The American Association for Respiratory Care has submitted comments to HCFA on the interim final regulations on the Prospective Payment System (PPS) and Consolidated Billing for Skilled Nursing Facilities (SNFs).

Published in the May 12, 1998 Federal Register, the interim regs were problematic for the respiratory therapy profession in many respects. After careful review of the document's shortcomings and thorough consideration of the possible solutions, the AARC made specific recommendations as summarized here. The complete letter to HCFA is also available for your review.

The AARC's recommendations to HCFA include:

Although regulatory requirements do not permit HCFA to respond directly to the Association, HCFA will address the issues we have raised through yet another Federal Register notice sometime in 1999.

HCFA Accepts AARC Commissioned Study on SNF Patients

August 14, 1998
The American Association for Respiratory Care recently gained ground for respiratory therapy in the SNF PPS debate as HCFA has signed off on an AARC commissioned study on respiratory patients in SNFs.

The agency has acknowedged the numbers presented in the study are accurate which the AARC believes should prompt HCFA to redefine respiratory coverage in SNFs under PPS. The study was conducted by Washington D.C.-based consulting firm Muse & Associates. The executive summary is available here for your review. If you would like more information about the study and why the AARC commissioned it, check out this archived Feature of the Month.

AARC Seeks MedPac Review of PPS Issues

August 12, 1998
AARC recently sent a letter to Gail Wilensky, head of MedPac. MedPac stands for Medicare Payment Advisory Commission. It is an independent government agency created by Congress to review the various reimbursement structures for Medicare benefits and to report their findings to Congress. The Commission has been particularly focused on the impact that prospective payment systems have on beneficiaries and suppliers. Congress relies heavily on the recommendations made by MedPac, so as part of AARC's strategy to attack the SNF PPS issue from all angles, we are asking MedPac to review possible quality issues resulting from PPS in SNFs and the impending implementation in Outpatient Services and Home Health. Following is the letter AARC President Cindy Molle sent to the chair of MedPac.

Gail R. Wilensky, PhD
Chair
Medicare Payment Advisory Commission
1730 K Street, NW, Suite 800
Washington, DC 20006

Dear Dr. Wilensky,

As Medicare continues its transition into a capitated health care system, the American Association for Respiratory Care (AARC) has serious concerns that current Medicare personnel standards do not adequately ensure safe and effective health care for all patients.

The Prospective Payment System (PPS) now being implemented for Medicare Part A Skilled Nursing Facilities (SNF) has provided a financial incentive to nursing homes to use potentially unqualified personnel to render services. This situation affecting the quality of care in nursing homes, will only become magnified as additional Medicare benefit sites such as home health and hospital out-patient services transition into a reimbursement system based on prospective payment. Therefore, we urge the Medicare Payment Advisory Commission (MedPac) to consider undertaking actions that will result in creation of a safety net by establishing evidence-based minimum competency standards.

Our organization is a 37,000 member professional association representing the highly skilled respiratory therapy profession. Even though we are primarily concerned with patients suffering from pulmonary disease, we believe such standards should be developed for all services.

Prospective Payment in Nursing Homes

We are beginning to see an erosion in the quality of respiratory therapy being delivered to SNF patients. Due to the imprecise language and failure of the regulations to properly define respiratory therapy, respiratory therapists are being supplanted by other personnel who have not been trained or tested for competency in this provider site. Nursing homes are under no legal or regulatory obligation to ensure that the individuals rendering respiratory therapy services are educated, trained, and more importantly competency-tested to do so. For instance, current personnel requirements are so lax that they could potentially sanction a five-minute training video. The individual watching that video would be considered as a trained and capable of providing respiratory therapy services.

The AARC has been working with HCFA for over seven months in an effort to revise the definitions of respiratory therapy within the Resident Assessment Instrument (RAI) Manual. The AARC maintains, and will continue to maintain that all personnel rendering respiratory therapy services must document competency relevant to the procedures they provide to patients. Caregiver competency needs to be documented, not just in SNFs, but in all health care delivery settings.

This should not be an unreasonable request. Medicare patients have a right to receive care from competent providers. Nevertheless, we have been unable to reach agreement with HCFA staff over the need to establish a competency requirement regulation for individuals rendering respiratory therapy.

HCFA maintains that other health care providers are capable of performing respiratory therapy procedures, assessments, and care planning with no further requirements for additional training and education, and absolutely no need for the personnel to be tested for competency while providing respiratory therapy services. We have found no objective evidence to support this contention.

The AARC maintains that without further education, training, and competency testing in respiratory therapy, no one should be rendering respiratory therapy services to Medicare beneficiaries. Medicare policy directives must be revised to clearly define precise personnel standards which must include documentation of competency for individuals who perform medical procedures, treatments, and services.

The following provides an overview of the respiratory therapy profession.

Respiratory Therapy - Specialized and Complex

Respiratory therapy is a highly specialized allied health discipline focused on the management and treatment of lung disease and illness. Respiratory therapists treat patients with acute and complex respiratory problems in a broad spectrum of settings. They also assess and develop patient care plans as part of their scope of practice. Respiratory therapists initiate, conduct, and modify prescribed therapeutic procedures, assist physicians performing special procedures, and conduct pulmonary rehabilitation. They select, assemble, and assure that equipment will not contribute to nosocomial infection. Additionally, they verify proper equipment operation and correct malfunctioning equipment. Respiratory therapists maintain patient records and communicate relevant information to other members of the health care team.

Moreover, respiratory therapists utilize clinical decision-making skills to assess resident health, analyze pathophysiology, recommend medications, and design, implement, and modify respiratory care treatment plans. They implement protocol-based care in which respiratory therapists work with physicians to develop the most appropriate treatment plan to meet a resident's changing respiratory care needs. Respiratory therapists rely upon a combination of intervention and clinical thinking skills developed through experience and actual clinical practice. They utilize their training in and knowledge of the latest complex respiratory care technology to make resident care decisions.

Respiratory therapists must pass a rigorous examination administered by the National Board for Respiratory Care (NBRC) to be credentialed. The NBRC examination is the only examination which tests the competency of health professionals to render respiratory care services. The test is based on job requirements. The NBRC competency examination specifically focuses on skills and knowledge related to respiratory care.

State Licensure is No Solution

In past discussions, HCFA contends that the scope of practice provisions contained in state licensure or certification laws prevent unqualified personnel from rendering health care services without appropriate training or education. However, by design and by definition, scopes of practice are non-exclusionary. Thus, the provisions of the SNF PPS provide a porous barrier which invites professional crossover of skills. In certain circumstances, crossover skills among professionals is efficient and effective and does not endanger patient care. On the other hand, some facilities driven by financial motives to maximize their per diem may use unqualified personnel and justify their decision as based on open ended scope of practice definitions. HCFA cannot abandon its duty to ensure quality care that maximizes patient outcomes by relying on state scopes of practice to provide a firewall against inappropriate personnel decisions.

In the case of respiratory therapy, 42 states, Puerto Rico, and the District of Columbia have respiratory therapy licensure or certification laws. There are eight states without any state-based regulations. Unscrupulous providers in any state, but in particular those eight states without respiratory regulations, could very well employ unqualified personnel to assume the duties of the respiratory therapist. Again, it is HCFA's responsibility to have program safeguards in place that would protect Medicare beneficiaries from receiving services by unqualified and untrained personnel whether they be in states with or without licensure laws.

Conclusion

While the above discussion has focused on the specific case of respiratory therapy personnel requirements as it applies in nursing home facilities we have described, can, and no doubt will, be applicable to other professionals in other health care sites. As a result of the new financial pressures and incentives derived from reimbursement under a prospective payment system, the use of qualified personnel rendering services may be jeopardized, and the quality of health care will erode. We urge MedPac to focus its attention and resources on assessing this impending quality of care issue.

Sincerely,

Cynthia J. Molle, BS, RRT, RCP
AARC President

December 2, 1998 -- Update
The AARC recently received a letter from Gail Wilensky in response to recommendations we made to MedPac earlier this year. Wilensky acknowledged our concerns about the quality of care being given in SNFs and assured us the Commission shares those concerns and will consider our comments carefully.

HCFA Clarifies Medicare Coverage for RT Services

June 16, 1998
The Balanced Budget Act of 1997 (BBA) has caused some confusion regarding respiratory care services and the requirement to provide RT to nursing homes as part of a hospital transfer agreement. AARC Director of Government Affairs Cheryl West contacted HCFA seeking clarification of the final regulations. We have posted HCFA's response in an effort to help practitioners understand the new policy. James Kenton represents the Center for Health Plans and Providers at the main HCFA office in Baltimore.

DEPARTMENT OF HEALTH & HUMAN SERVICES
Health Care Financing Administration
7500 Security Boulevard
Baltimore, MD 21244-1850

Cheryl A. West, MHA
Director of Government Affairs
American Association for Respiratory Care
225 King Street, Second Floor
Alexandria, Virginia 22314

Dear Ms. West:

I am responding to your letter to Bill Ullman of my staff regarding the effective date of the expansion of Part A coverage to include services furnished to a skilled nursing facility (SNF) resident by a respiratory therapist who is not employed by the SNF's transfer agreement hospital. As explained below, this coverage change becomes effective for services furnished on or after July 1, 1998. The following discussion provides some additional background on this change in Medicare coverage.

Historically, the services of respiratory therapists have been furnished to SNF residents primarily through an agreement with the SNF's transfer hospital under section 1861(h)(6) of the Social Security Act (the Act), due to various longstanding restrictions in the Medicare law itself that have largely precluded coverage under the Part A SNF benefit by any other means. However, as explained below, the Balanced Budget Act of 1997 (BBA '97, P.L. 105-33) has amended section 1861(h)(7) of the Act to expand SNF overage in this regard.

Section 1861(h) of the Act describes coverage of "extended care" (i.e., Part A SNF) services. In addition to the specific service categories set out in paragraphs (1) through (6) of this section, paragraph (7) provides for coverage of other services that are generally provided by SNFs. Until recently, though, the statutory language regarding services that are "generally provided by" SNFs required not only for a particular service to be "generally provided" (i.e., for the provision of that type of service to be the prevailing practice among SNFs nationwide), but also for the service to be provided directly "by" the SNF itself.

However, section 4432(b)(5)(D) of the BBA '97 has now expanded section 1861(h)(7) of the Act to include coverage of services that are generally provided by SNFs or by others under arrangements with them made by the SNF. As a result, the extended care benefit will now cover the full range of services that SNFs generally provide, either directly or under arrangements with any qualified outside source. Accordingly, the services of respiratory therapists (which have until now been specifically coverable as extended care services only when provided by those therapists who are employees of the SNF's transfer agreement hospital under section 1861(h)(6) of the Act), will have now become coverable when provided under arrangements made directly between the SNF and a respiratory therapists, regardless of whether the therapist is employed by the SNF's transfer agreement hospital (see the discussion in the preamble to the interim final rule on the SNF Prospective Payment System (PPS) and Consolidated Billing, 63 FR 26301-02, May 12, 1998).

Finally, I would note that section 4432(d) of BBA '97 provides that the amendments made by section 4432(b) (regarding SNF Consolidated Billing and its conforming changes, including the revision of section 1861(h)(7) of the Act discussed above) apply to items and services furnished on or after July 1, 1998. Thus, unlike the effective date for the SNF PPS itself (which is based on the start of the individual SNF's first cost reporting period that begins on or after July 1, 1998), the change in Part A SNF coverage discussed above is effective for services furnished on or after July 1, 1998.

I hope that you will find this information helpful. If you would like to discuss this issue further, please feel free to contact Bill Ullman on (410) 786-5667.

Sincerely yours,

James K. Kenton
Director
Division of Institutional Postacute Care
Chronic Care Purchasing Policy Group
Center for Health Plans and Providers

SNF PPS Regs Issued

May 26, 1998
The long awaited SNF PPS regulations were issued in the Federal Register on May 12, 1998. The regs ran for several hundred pages focusing almost completely on how both the federal and facility specific rates are to be calculated. It is an economist's and statistician's dream but it is one mere mortals will find hard to comprehend. The key point for respiratory therapy and the one that we had anticipated, relates to the hospital transfer agreement.

The requirement to use only respiratory therapists from a hospital with which a SNF has a transfer agreement will be eliminated. That means respiratory therapy services may be provided to SNFs "under arrangements." However, there is some confusion about exactly when this will occur. The language of the bill seems to imply that transfer agreement requirements would end as of July 1, 1998; however, fiscal intermediaries are not interpreting it this way but rather that it would go into effect as SNFs transition into PPS. The AARC has asked HCFA for clarification of this provision in the legislation.

Eliminating the hospital transfer agreement (whenever that occurs) means that respiratory therapy services will be able to be provided from a variety of settings and by a variety of providers. In addition to hospital based therapists, staffing companies, DMEs, and individual therapists (under medical direction), any other entity may contract with a SNF to provide the respiratory therapy services. Hospital based therapists can still provide respiratory therapy services if that is the SNFs choice. This regulatory change will put respiratory therapy on a par with how PT, ST, and OT have always operated and provided services to Medicare beneficiaries.

Other key points of the regulation:
There will be a transition into the full PPS over a 3-year period. There will be a federal rate and a facility specific rate. The federal rate applies to all costs of Part A Medicare SNF services with the exception of educational costs. The data used to develop these rates were taken from the cost and claims reports of 1995, a wage index, a case-mix index, and a market basket inflation index. The federal payment rate will be a two-tiered system with different payments for urban and rural areas. Urban areas are defined by using the metropolitan statistical areas or MSAs. Many pages of the regulation were used to provide justification and then instructions on how a facility is to calculate its own facility specific rate. The facility specific rate is based on the 1995 cost report (which includes routine, ancillary and capital related costs) plus an estimate of the amount that would be payable under Part B for covered SNF services.

The transition to PPS will occur over 3-years. Year-1, the SNF will be reimbursed a per diem rate calculated on 25% federal rate; 75% facility specific rate. Year-2, a 50% federal rate; 50% facility specific rate. Year-3, 75% federal rate, 25% specific rate and in Year-4, 100% federal rate. New SNFs and SNFs that began operations after October 1995, will go directly to a federal rate. The transition to PPS will begin on or after July 1, 1998, depending upon the nursing home's cost-reporting year. Approximately 1,800 SNFs will go on-line July 1 while a majority of nursing homes will begin the transition January 1, 1999.

RUGs III is a classification system which will be used in the payment scheme. It represents the amount of nursing and treatment time for patients that fall into each RUGs category. There are 7 RUGs categories (rehabilitation, extensive services, special care, clinically complex, impaired cognition, behavior, and physical function). Each RUGs category has sub-categories based on the intensity of services needed by the individual patient. There is a total of 44 RUGs sub-categories, each with a separate payment rate. The top 26 RUGs sub-categories (RUGs is arranged in an hierarchical order) are Medicare eligible. The "lower-end" RUGs sub-categories apply to Medicaid care.

SNFs must prepare a minimum data set (MDS) clinical assessment by day 5 of a patient's admission to a SNF. (There is a grace period until day 8 for the first MDS completion) Ongoing MDS assessments must be completed by day 14, day 30, day 60, and day 90, or if a patient's physical condition significantly changes. The outcome of all the patient data derived from the extensive MDS fields will determine what RUGs category the patient will fall into and, therefore, what the per diem rate will be during that time-frame. For example, the first MDS will result in a RUGs placement and payment to the SNF from day 1 through 14. The next MDS performed may or may not (depending if the patient's condition has changed) result in a different RUGs classification. It must be performed by day 14 and will cover payments from day 14 to day 30. The next MDS must be performed by day 30 and will cover through day 60. The system will continue in the same way as each MDS deadline comes due.

These are just the highlights of the regulation. Be aware there is a 60-day public comment period and the AARC will be commenting on these regulations. You can access the full document through our link to the Federal Register. As we analyze the regs further, we will keep you apprised of any other issues that may come to light if they have a direct or indirect impact on respiratory therapy.

PPS Regulations for SNFs Now Online

May 12, 1998
Medicare's Interim Final Rules for "Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities" are now posted in the Federal Register. As with all links to the Federal Register, you must be patient as the connection is processed. It is not uncommon to wait for long periods while your web browser loads information from that site. The regulations are 300 pages long, so when you use that link, keep in mind that it may take even longer than usual to process the connection.

We are also awaiting a response from HCFA on their new definitions for "respiratory therapy" and "trained nurse" that will be used as a part of the Resident Assessment Instrument.

The AARC has additional information about the regs in AARC Times magazine. Please have your member number handy to reference these documents. You must also have the Adobe Acrobat Reader installed in your system in order to read this information.

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