ATRA MET WITH CMS TO DISCUSS PHYSICIAN REFERRAL OF RT SERVICES FOR IRF'S

ATRA Meets with CMS re: end of the “3 Hour Rule” in Inpatient Rehabilitation Facilities

Since January 2020, the United States has operated under a declared public health emergency (PHE) during the COVID-19 pandemic. The Public Health Service Act, which provides the Secretary of Health and Human Services (HHS) with the authority to declare PHEs, requires such declarations to be renewed every 90 days if it is determined that the emergency still exists. 

Post-Acute Care Waivers During the PHE

Using the agency’s own authorities and additional flexibilities granted by Congress, the Centers for Medicare and Medicaid Services (CMS) has implemented a series of blanket waivers for health care providers during the PHE. These include several important waivers impacting post-acute care (PAC) providers, the vast majority of which are scheduled to revert entirely upon lifting of the PHE, unless additional action is taken by CMS and/or Congress. Key waivers impacting the PAC field, and the status of those waivers, are summarized below.

Three Hour Rule:  First, numerous important PHE waivers directly impact Inpatient Rehabilitation Facilities (IRFs). A full list can be found here. Of particular importance is the so-called “three hour rule” waiver which is set to expire at the end of the PHE. The Coronavirus Aid, Relief, and Economic Security (CARES) Act includes a requirement during the PHE that CMS waive the “three-hour rule” for IRFs. Prior to the PHE, IRFs were required to use an “intensity of therapy” standard to assess whether patients were appropriate for admission to an IRF.  This equated into a requirement that beneficiaries participate in at least three hours per day (or 15 hours per week) of skilled rehabilitation therapy. This requirement has been wholly waived during the PHE so that IRFs can accept patients even if they are not expected to receive the required three hours. On August 26, 2022, Representatives Joe Courtney (D-CT) and Glenn “GT” Thompson (R-PA) introduced H.R. 8746, the Access to Inpatient Rehabilitation Therapy Act.  This legislation would maintain the three-hour rule in its pre-pandemic form upon admission of the patient, but would grant more flexibility for the treating rehabilitation physician to prescribe a broader mix of skilled therapeutic services as the patient recovers and prepares for discharge to home or another setting of care. 

Stakeholders, including ATRA, have met with CMS to discuss avenues to permanently expand the three-hour rule after the PHE ends, so that IRFs do not automatically “snap back” to the most restrictive version of the rule after the PHE. If agency action is not taken, stakeholders are likely to work with Congress to reintroduce the Access to Inpatient Rehabilitation Therapy Act in the 118th Congress to ensure that patients in IRFs are able to access the full slate of skilled therapies deemed necessary by the rehabilitation team. 

To read the full briefing on the end of the PHE from Powers Firm, click this link.