Feds Delay Final Rule for Discharge Planning Condition of Participation

Monday was the last day that CMS could have finalized the rule changes, per law.

Three years ago this week, the hospital case management world was sent into turmoil by the release of CMS-3317-P, a 125-page Centers for Medicare & Medicaid Services (CMS) proposed rule titled “Revisions to Requirements for Discharge Planning for Hospitals, Critical Access Hospitals, and Home Health Agencies.”

The uproar over the proposal was fast and furious due to the breadth of changes proposed by CMS and the extensive process adjustments that would be needed to comply with all the new provisions, if adopted. But months and then years went by, with no word on the proposal…until now.

And as the hospital world awaited the imminent release of the 2019 Outpatient Prospective Payment System (OPPS) and the 2019 Medicare Physician Fee Schedule (MPFS) final rules, CMS surprised everyone by posting a new notice, CMS-3317-RCN, titled “Extension of Timeline for Publication of Final Rule,” whereby the agency used its discretion to extend the deadline for a year due to “exceptional circumstances.” In that notice, CMS states that the complexity of the rule and the scope of the public comments warrant the extension of the timeline. They go on to note that they received 299 public comments, and that there are specific policy issues that need to be addressed, saying that development of the final rule “requires collaboration with the Department of Health and Human Services’ Office of the National Coordinator for Health Information Technology.”

For those who may have forgotten, during recent years CMS made many wide-ranging proposals, including mandating that formal written discharge plans would be required for all inpatients, as is currently required, but also for all observation patients and outpatients having a procedure with anesthesia or sedation. They also proposed requiring the discharge planning process to commence within 24 hours of admission or registration, and provision of the discharge summary to the primary care physician within 48 hours of discharge. The discharge instructions were to be required to have both brand-name and generic listings for all medications. Unlike other regulations, CMS proposed that these changes would also apply to critical access hospitals (CAHs).

Under current regulations, hospitals must provide patients a list of all skilled nursing facilities (SNFs) and home health agencies (HHAs) in their area, indicate any that the hospital owns, and allow the patient to choose. The proposal would have extended this to include inpatient rehabilitation facilities (IRFs) and long-term acute care hospitals (LTACHs) and also require hospitals to provide patients with data on quality and resource utilization for all local SNFs, IRFs, LTACHs, and HHAs.

CMS also proposed to formalize the discharge process for HHAs, requiring a formal discharge plan and the production of a formal discharge summary to be provided to the receiving facility or physician. If an HHA patient is transferred to a SNF, IRF, LTACH, or another HHA, the proposal states that HHA must provide quality data and resource use data to help the patient choose their provider.

When asked, a Medicare regulatory expert who asked to remain anonymous stated that a proposed regulation that is 125 pages long and received less than 300 comments should not take three years to be evaluated. The expert stated that the 2019 Inpatient Prospective Payment System proposed rule received over 1,500 comments and was over 1,800 pages, and yet a final rule was produced in just over three months. The person wondered if CMS simply lost track of the proposed rule and now extended the deadline so as to not have to start all over again.

The extension will come as a great disappointment to the many commenters who had hoped that CMS realized that requiring a discharge plan on outpatients would not add any benefit to patients, but would add significant financial and personnel burdens to hospitals and home care agencies.

The extension notice can be found online at https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-23922.pdf , and the proposed rule at: https://www.regulations.gov/document?D=CMS-2015-0120-0001

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