CMS Delays Determinations on the Majority of Proposed Regulatory Waivers for MSSP

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 On June 9, the Centers for Medicare and Medicaid Services (CMS) released its Medicare Shared Saving Program: Accountable Care Organizations (ACO) Final Rule, which does little to provide flexibility for regulations that impact post-acute care providers.  

The original proposed rule suggested the potential for regulatory relief for providers around: 

  • The skilled nursing facility (SNF) 3-day stay rule.

  • Homebound status for home health recipients.

  • Reimbursement for telehealth services.  

However, the SNF 3-day rule was the only regulation waiver that CMS felt was necessary for the continued successful operation of the Medicare Shared Savings Program.  CMS ultimately determined that more evidence was needed to support the need for the other waivers. 

Why Only the 3-Day Rule Waiver? Currently, the agency's ability to issue waivers is based on whether or not the wavier is vital for the success of a program.  Piloting of the SNF 3-day rule waiver has been ongoing within the Pioneer ACO model, whereas waivers for telehealth billing and reimbursement and homebound status for home health recipients have had little to no testing to date.

Comments on the rule pressed for wide application of the SNF 3-day rule waiver, preferring it be applied to all Medicare Shared Savings Program ACOs. The final rule implements the waiver with a measured approach, applying only to ACOs in Track 3 and adopting the program criteria developed for the Pioneer ACO program. 

ACO Qualification: Within those guidelines, an ACO that applies for the waiver must meet certain criteria to be granted the exception:

  1. Ability to demonstrate that they can identify and manage patients who would be directly admitted to a SNF after fewer than 3 days of an inpatient hospital stay.
  2. Description of how it will implement the waiver including provisions for the communication and coordination across provider settings, beneficiary care management, and SNF provider education. 
  3. The ACO may exercise the waiver only with SNFs with whom they have executed written agreements.  The ACO must not require a financial contribution from the SNF to obtain an agreement. All financial arrangements between the ACO and SNF must be explained in the waiver application.

Qualifying As A Partner: To qualify as a potential partner a SNF must also meet certain criteria:

  1. An overall quality rating of 3 or more stars as reported on Nursing Home Compare and must maintain that rating.
  2. No current or previous program integrity issues and/or any history of Medicare program exclusions and/or any affiliation with entities that have program integrity issues.
  3. Through an executed “SNF Affiliate Agreement” the SNF agrees to comply with Medicare Shared Savings Program program rules, training on the ACO care management model, beneficiary evaluation and admission process and validation of beneficiary waiver eligibility.

CMS anticipates increased monitoring of ACOs and SNFs billing, marketing, and admission practices under the waiver. Flexibility to deny or revoke ACO participation is also provided for in the rule.

What Happens to the Other Waivers? While the approval of the other waivers of interest are not ratified in the final rule, plans are laid to move toward such future action. Evaluation of the waiver of certain telehealth rules is being implemented in the Next Generation ACO model. 

Experience gained through that testing could lead to a telehealth wavier for the Medicare Shared Savings Plan sometime in 2017. CMS indicated that approval of any other waivers, such as the homebound status for home health recipients, would only take place after thoughtful testing had occurred.

Lastly, the initial proposed rule solicited comments on a waiver of the referral restrictions on hospitals to preferred post acute care providers.  

Many comments, including those from LeadingAge, cited concerns that such a waiver could negatively impact access to services and patient choice/preference. CMS has included this waiver in the list of future options to consider, only after adequate evaluation.

Many LeadingAge providers currently have or are seeking relationships with ACOs.  The final rule helps to demonstrate the need to move toward solidifying those relationships with defined programs, procedures and agreements.   

LeadingAge providers possess the quality and integrity needed to meet “SNF Affiliate” criteria.  Successful implementation of the SNF 3-day rule is imperative for future regulatory relief. (Jill Sumner, LeadingAge)


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