New survey: 75% rule could deny patients access, close rehab doors

Rehab providers say some won’t be able to comply

Fewer than one-quarter of rehab hospitals responding to a recent survey believe they will be able to comply with the 75% rehab rule during the three-year transition period; more than 40% will be turning patients away; and 14% said they expect to have to close their units or hospitals completely.

Those grim predictions are included in survey results released recently by the American Hospital Association (AHA) and American Medical Rehabilitation Providers Association (AMRPA). The survey garnered responses from 333 rehabilitation facilities and was generated in response to the recently released final version.

The AHA/AMRPA survey asked respondents how well they thought their facilities could comply during the three-year phase-in, what patients they expect to have to turn away, and what they expect the effects will be to their facilities’ bottom line. Among the findings:

  • When the rule is fully implemented, four of 10 hospitals will be forced to turn away rehabilitation patients.
  • Certain patients will face greater difficulty in accessing rehabilitation care since health conditions such as cardiac, pulmonary, transplant, and cancer are not compliant under the rule.
  • During the first year of enforcement, almost 25% of rehabilitation facilities would not meet the new standards, forcing them to discontinue services or close their doors altogether. That number jumps to 80% by the final year of the phase-in period. (See survey results.)

"We are going to have to shift to meet the criteria," says Joe Golob, PT, director of the Inpatient Rehabilitation Center at St. Francis Hospital in Greenville, SC. He says the findings of the AHA/AMRPA survey are not an unrealistic picture of inpatient rehab medicine in four years — Golob’s 19-bed facility already has started making staffing decisions based on expectations of fewer beds being filled next year. "We typically average 17 beds [filled], but we don’t anticipate being at that level in the next fiscal year," Golob explains. St. Francis’ fiscal year starts Aug. 1, and the administration is making staffing plans based on the final rule, he notes. "We’ve had [staffing] decisions we’ve had to make just in the past month," he says. "We are going to have to staff much more closely."

Throughout the period between when the proposed changes were released and the final rule was issued, many in the rehabilitation services field argued that the retention of the 20-year-old 75% rule would make it more difficult for a rehab hospital or unit to be certified as a qualified provider of inpatient rehabilitation services.

"Rehabilitation is a critical component in the continuum of care," Rick Pollack, AHA executive vice president, said in a press release. "Reducing the availability of rehabilitation services is bad policy and bad for patients. We need to ensure that these services are there for the patients who need them."

AMRPA also is urging Congress to take advantage of a review period included in the issuance of the revised rule, to correct what AMRPA board chairman Felice Loverso, PhD, called "this damaging regulation."

The 75% rule is a key criterion a rehabilitation facility must satisfy to qualify for reimbursement under Medicare. The Centers for Medicare & Medicaid (CMS) failed to update the 20-year-old qualifying conditions for the 75% criterion in a meaningful way, critics say; aside from expanding the definition of polyarthritis and building in a three-year transition period for the 75% rule, the rule is essentially unchanged, they charge. (To see the rule, go to www.cms.hhs.gov/providers/irfpps/default.asp.)

Particularly worrisome is the change to the definition of polyarthritis. The new rule states that for a patient to count toward the 75% threshold, he or she must have severe or advanced osteoarthritis involving two or more major joints and must meet other medical criteria.

"Our system does a lot of orthopedic surgery, and that was an important source of patients for us," Golob notes. "Polyarthritis is the diagnosis for most of those patients. But unless it’s bilateral, or they’re over 85, or they have multiple subcriteria, it will be a huge challenge to meet that."

More than 240 U.S. representatives and 80 senators signed letters in June urging Tommy Thompson, Health and Human Services (HHS) secretary and Mark McClellan, CMS administrator, to delay the 75% rule. Despite earlier congressional directives, the rule "was solidified without a thorough, independent assessment by medical experts," the lawmakers said, and could threaten patients’ access to care. "If HHS is unable to accommodate this request, we may need to pursue legislative remedies," the letter cautioned.

The letter follows a similar letter recently signed by 82 members of the Senate. (To see both letters, go to www.aha.org/aha/key_issues/rehab/whatsnew.html.)

U.S. Reps. Nita Lowey (D-NY) and Zach Wamp (R-TN) have sponsored an amendment requiring a moratorium on enforcing the rule. Thus far, CMS has not agreed to an independent study prior to implementing the rule. The amendment requires CMS to contract with the Institute of Medicine (IOM) to study and make recommendations for modernizing the outdated rule; directs CMS to report the study and recommendations to Congress by Oct. 1, 2005; and bars CMS from enforcing the rule until nine months after the report is submitted. "Our hospitals are struggling to comply with a rule that reflects treatment options in 1984, not 2004," Lowey stated in a press release during hearings. "If this rule is not updated to reflect today’s practices, it will put our local rehab facilities on life support."

Marketing strategies for Golob’s hospital and other rehab facilities will have to change, he says. "We’ll definitely have to market more outside our system," he adds. "We’ll have to market to stroke patients and hip fractures for now, but who knows what will happen with [hip fracture patients counting toward the threshold]."

According to Golob, all facilities are in the same straits as his, so all will be going after the same, smaller pool of eligible patients. While no staff have been affected yet, he says administrators in all facilities will have to look at their projected patient traffic as they plan their staffing in coming years. "Each year the rule stays in effect, it will be more and more of a challenge, and there won’t be any considerations for comorbidities after the third year," Golob points out. "And we’ll have to manage our labor costs based on that."

The Lowey-Wamp bill cleared the House Appropriations Committee in early July, but is expected to face opposition when it moves to the House floor, possibly in early August. In the meantime, rehab facilities must wait to see what happens, but plan as if the final rule is, as CMS says, really final.

Need more information?

  • Joe Golob, PT, Director, Inpatient Rehabilitation Center, St. Francis Hospital, One St. Francis Drive, Greenville, SC 29601. Phone: (864) 255-1953.
  • Felice Loverso, PhD, Board Chairman, American Medical Rehabilitation Providers Association, 1710 17th St. N.W., Washington, DC 20036. Phone: (888) 346-4624.
  • Rick Pollack , Executive Vice President, American Hospital Association, 325 Seventh St. N.W., Washington, DC 20004. Phone: (202) 626-4625. Fax: (202) 626-2355. E-mail: rpollack@aha.org.