The Dilemma of the Discharge Planning Conditions of Participation

CMS is expected to release instructions and sub-regulatory guidance in 2020.

It was way back in 2015 when the Centers for Medicare & Medicaid Services (CMS) proposed changes to the discharge planning conditions of participation. Their goal was noble; they understood that because discharge planning is a complex process, a successful discharge plan is crucial to reducing the risk of readmission, improving the quality and safety of hospital care, and reducing costs.

This revision was also motivated by the Improving Medicare Post-Acute Care Transformation

(IMPACT) Act of 2014, which “requires hospitals, including but not limited to acute care hospitals, critical access hospitals (CAH), and certain post-acute care (PAC) providers, including long-term care hospitals (LTCHs), inpatient rehabilitation facilities (IRFs), home health agencies (HHAs), and skilled nursing facilities (SNFs), to take into account quality measures and resource use measures to assist patients and their families during the discharge planning process, (which) will encourage patients and their families to become active participants in the planning of their transition to the PAC setting (or between PAC settings).”

The Final Rule is Released
Usually, a proposed rule is released and followed by a 60-day comment period. Next, the proposal is withdrawn, or a final rule is released within the next three years. During the comment period for this proposal, which closed on Jan. 6, 2016, a total of 299 comments were received. Although CMS has up to three years to finalize a proposal, in most instances, the final rule is released within months. But as the three-year deadline approached in this case, there was no word until Oct. 30, 2018, when CMS issued a one-year extension for final rulemaking.

The final rule was released on Sept. 25, 2019. The final rule emphasizes that the discharge planning process should involve the patient as an active participant and respect the patient’s goals of care and treatment preferences. It also forbids hospitals from “steering” patients to preferred providers or limiting patient choice in any way. CMS chose not to adopt many proposals, including the requirement for discharge summaries within 48 hours, and formal discharge planning for all observation patients and outpatients who received sedation or anesthesia. CMS set an implementation date of Nov. 29, 2019, noting that the streamlining of the final rule does not warrant delaying implementation.

Obstacles to Compliance
The difficulty facing all providers is meeting the requirements for the patient choice of post-acute providers, including SNFs, IRFs, LTCHs, and HHAs. To meet the requirements of the IMPACT Act, CMS has collected resource use and quality measures data on all PAC providers, and begun development on the Compare websites, which allow anyone with Internet access to review some of that data.

CMS also has a data warehouse, data.Medicare.gov, that includes all the raw data; however, unless you understand .csv files and are experienced at database filtering, extracting the information you need can be difficult. A tech-savvy RACmonitor reader, Paul DeBruicker, alerted me to this data source and provided the 12 steps necessary to view an individual facility’s data.

Additionally, the SNF Compare website has no data on facility resource use, which is one of the two required elements that must be provided to patients. If resource use data is required, but there is no such data on SNFs, every hospital is automatically out of compliance with the regulation. While the rule itself does not define resource use, a CMS publication, “Medicare Resource Use Measurement Plan,” clearly defines it as total spending during “an episode of care.” The length of that episode can vary; some bundled payment programs look at payments starting with inpatient admission and including all spending until 90 days after discharge, and the Value-Based Purchasing program uses spending starting three days prior to admission and continuing for 30 days after discharge. For HHAs, IRFs, and LTCHs, CMS uses the date of admission as the starting date and 30 days after discharge as the ending date, suggesting that this time period is also applicable to SNFs.

As noted, resource use data on IRFs and LTCHs is available on the corresponding Compare web pages – but to display it for patient use requires printing four pages per facility. In an urban area where there are several facilities, the patient might be forced to review multiple pages of information. Having data available, but not in a user-friendly format for most patients, allows hospitals to be in compliance with the letter of the regulation, but certainly not with the spirit of it, as patients may struggle to access the information they need to make an informed decision, relying simply on the Compare site.

The definition of “choice” is also surprisingly controversial. In general, hospitals would offer a patient a list of facilities with open beds that could provide the care they needed. But as the regulation is written and supported by the commentary to the rule, patients must be offered a choice of all facilities in their geographic area that are able to meet their clinical needs, including facilities that do not have any open beds. CMS notes that “any delays in discharge will not be attributed to the hospital;” however, this statement provides little consolation to the hospital, paid per admission, that must now incur the costs of more hospital days without any additional revenue – while the patient waits for an available bed at their preferred facility.

Moving Forward Despite the Rule’s Uncertainties
There is a lot of anxiety in hospitals about the uncertainty of this rule and compliance with it. But the saving grace is that compliance is generally determined during surveys by CMS, the state, or accreditation agencies. These surveys use state operations manuals as a guide – and currently, the manual instructions on discharge planning still refer to the now-obsolete regulations. Without updated survey instructions, it is hard to see how a surveyor would assess compliance with the new regulation.

But that does not mean hospitals should wait to make compliance efforts with the parts of the regulation that are not dependent on unavailable data. For instance, hospitals can begin compliance efforts related to ensuring that patients’ goals of care and treatment preferences are honored, that patients are transferred to other facilities with all the necessary information to allow the facilities to provide excellent care, and that readmissions are reviewed to ensure that a faulty discharge planning process was not the cause of the readmission.

CMS is expected to release the manual instructions and sub-regulatory guidance in 2020. It is hoped that these documents will help clarify the industry’s uncertainty and help hospitals provide patients with the information and guidance they need to ensure that their post-acute care is well-planned and patient-centered.

Programming Note: Listen to live reporting by Dr. Ronald Hirsch on Monitor Monday, 10-10:30 a.m. EST.