The Centers for Medicare & Medicaid Services is bypassing rules for how value-based purchasing should roll out and thus is ignoring key requirements set forth in the health reform law, the American Hospital Association said in a strongly-worded 14-page letter released late Tuesday.
Because of these problems, the AHA says CMS must delay introduction of various parts of the VBP program by several months from their scheduled dates.
The Patient Protection and Affordable Care Act of 2010 (ACA) established a Medicare inpatient hospital VBP program to reward hospitals for better performance on quality measures beginning in fiscal 2013, the letter begins. That included "detailed requirements regarding implementation of the VBP program, including the timing of measure introduction and selection.
"Despite the law's specificity, CMS has not met its requirement with respect to certain measures," a failure that "will unfairly and adversely impact the hospital field and even undermine the intent of the law, which is to provide opportunities for hospitals to improve their performance." The Aug. 29 letter to CMS administrator Donald M. Berwick, MD, was signed by AHA executive vice president Rick Pollack.
Pollack added that the problems spill over to outpatient prospective payment systems because they build on policies "that fail to comply with the law's requirements."
1. A measure can not be used for a performance period unless that measure has been specified by the inpatient quality reporting program – so hospitals can review its performance, request changes and attest to their accuracy. A measure also can not be used unless it has been displayed on the HospitalCompare website for at least one year prior to the start of the performance period.
"The law requires that hospitals whose payments will be affected by these measures, clinicians whose performance will be judged by these measures and patients whose care will be affected by these measures have the opportunity to know precisely what CMS is measuring, their current level of performance and have an opportunity to improve on measures prior to their inclusion in the VBP program," Pollack wrote.
However, in the fiscal year 2012 inpatient prospective payment system final rule, CMS said "it will generally add measures to the VBP program at the same time it adds them to the IQR program. This is inconsistent with the law. Until a measure is included in the IQR program, CMS will not have measure data to post on HospitalCompare...(and thus) will not have data available to satisfy the statutory requirement" of one year prior to the performance period.
2. The ACA specifies that CMS include efficiency ratings, specifically Medicare spending per beneficiary, in the VBP program for FY 2014 or a subsequent fiscal year. "This is a completely new type of quality measure for hospitals in which they will be held accountable for patient care provided by external and likely unaffiliated providers through 30 days post-discharge," Pollack wrote.
However, CMS has "never released a publicly available specification document for the measure," a critical part because it is "CMS's first foray into efficiency measurement."
For example, hospitals do not know what defines the denominator, the numerator of cases to be included, which exclusions are to be removed from the denominator and how the data will be risk-adjusted.
Hospitals have never been given the opportunity to review their performance on spending per beneficiary, to request changes or attest to the accuracy of the calculation.
"Thus in order to comply with the law, CMS cannot begin the performance period for the Medicare spending per beneficiary measure on May 15, 2012."
3. The VBP rule said a measure's performance period for hospital-acquired conditions started one year after it was first displayed on HospitalCompare. And CMS said it would begin the performance period on March 3, 2012.
"However, the HAC measures were not posted directly on HospitalCompare one year prior to this date, as required by law, and are still not posted as of the date of this letter. Instead, the HAC measures were displayed as a downloadable spreadsheet on the CMS website on March 31, 2011."
Posting a spreadsheet does not comply with the ACA statute, Pollack wrote, adding "in order to comply with the law, CMS cannot begin the HAC performance period on March 3, 2012."
4. The Medicare spending-per-beneficiary measure has not been submitted for National Quality Forum endorsement review. CMS "neither provided justification for using the non-NQF endorsed Medicare spending per beneficiary measure nor gave any consideration to measures that have been endorsed or adopted by a consensus organization identified by the HHS Secretary. Thus by including this measure in the VBP program, CMS is not complying with the law.
5. CMS has made changes to the original VBP rule in three separate regulations, making it "very difficult to track all of the moving pieces associated with these multiple regulations. Further, CMS has created timing issues, both for itself and the public, around outpatient proposals that were reliant on inpatient proposals that were not finalized until well into the outpatient comment period."
The Medicare spending per beneficiary measure, the hospital-acquired conditions measure, the composite measures defined by the Agency for Healthcare Research and Quality and planned outcomes of care domains such as 30-day mortality all must be delayed until FY 2014 to satisfy ACA provisions, Pollack wrote.
6. The ability of hospitals to review and validate measures and data is lacking, he wrote. "Beyond explicitly creating an appeals process, hospitals should be afforded the opportunity to pursue an external validation of the measures that CMS calculates.
The AHA urges "CMS to make available a database including all of the data used to calculate the hospital VBP measures. CMS must provide the data in a format that is consistent with the time periods used for the baseline and performance data. Until this resource is made available, hospitals have not been given the right of appeal that was afforded in the ACA."