Congress Due to Delay “75% Rule” Move Will Benefit Medicare Patients in Inpatient Rehabilitation Policy Analysis
Policy Analysis  |   January 01, 2004
Congress Due to Delay “75% Rule”
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Regulatory, Legislative & Advocacy / Policy Analysis
Policy Analysis   |   January 01, 2004
Congress Due to Delay “75% Rule”
The ASHA Leader, January 2004, Vol. 9, 2-23. doi:10.1044/leader.PA2.09012004.2
The ASHA Leader, January 2004, Vol. 9, 2-23. doi:10.1044/leader.PA2.09012004.2
Audiologists and speech-language pathologists working in an inpatient rehabilitation facility (IRF) will be spared the impact of a restrictive admission policy if the U.S. Senate concurs with the House of Representatives appropriations bill (H.R. 2673) passed in December. The bill requests that the Centers for Medicare and Medicaid (CMS) continue suspension of “the 75% rule,” which restricts IRFs’ access to certification by Medicare.
ASHA and other rehabilitation provider groups had lobbied Congress to prevent CMS from imposing outdated admissions criteria to determine if a facility qualifies for prospective payment as an IRF. The rule, issued in 1984, forces 75% of an IRF’s inpatients to conform to a list of 10 diagnoses and conditions, including stroke, brain injury, and neurological disorders.
“The reason that IRFs have been able to serve more patients currently is only because the 75% rule has not been actively enforced for years,” said Paul Rao, vice president of clinical services, quality improvement, and corporate compliance at the National Rehabilitation Hospital in Washington, DC, and a CARF (The Commission on the Accreditation of Rehabilitation Facilities) surveyor.
In June 2002, CMS officially suspended enforcement of the 75% rule until the agency investigated its impact and determined whether the regulation should be changed.
Revision Proposed
In September 2003, the CMS proposed a revision to the 75% rule to allow a broader case mix for IRFs certified by Medicare. Although changing patterns of patient care and technological advances have allowed patients with a broader range of conditions to benefit from inpatient rehabilitation services, the revision is little more than a regulatory tweak. The number of diagnoses or conditions was increased from 10 to 12 (with the creation of three conditions related to joint inflammation instead of one), and the minimum percentage of patients was reduced from 75% to 65%-but only for two years, after which the rule reverts back to 75%.
In proposing the change, CMS acknowledged that if the current 75% rule were enforced, many IRFs would be disqualified from Medicare participation. Patient assessment data for the first eight months of 2002 indicate that less than 14% of IRFs had at least 75% of cases fall into the 10 specified conditions. The hospital rehabilitation community believed the proposed rule would still deny Medicare participation by many IRFs unless their admission thresholds became much more restrictive. Rao reports that in several of his recent CARF medical rehabilitation surveys, IRFs were in the 25% range of compliance but near full capacity and demonstrating excellent outcomes.
ASHA submitted comments on the proposed revision to CMS, citing reports analyzed by the American Hospital Association that concluded that only half of the Medicare patients who qualified for care in 2002 would meet the criteria in 2007 if the proposed rule became final. An Oct. 31 letter to Tom Scully outlined ASHA’s objections. In the letter, ASHA urged that CMS continue to suspend the rule and that a requested study by the Institute of Medicine be conducted before CMS or Congress attempts to resolve the 75% rule issue.
The proposed revision would allow a case to qualify within the 12 conditions even if the condition was a comorbidity rather than the primary reason for admission. The comorbidity must cause a significant functional decline that would require IRF treatment. CMS will evaluate the arguments against the proposed 65% rule and determine if a less restrictive range of conditions and/or minimum percentage should allow the facility or unit to remain qualified as an IRF.
“The proposed 65% rule would not reflect the significant changes in medical care practices that have taken place since the 75% rule was established,” Rao said.
“The rule was a result of a focus group of rehab physician leaders who were queried as to their ranking of the 10 diagnoses most appropriate for admission to an acute rehab facility,” he said.
“Interestingly, in the 1970s few people were surviving heart attack and cardiac surgery and cardiac rehab was not in the picture. Today cardiac patients comprise about 10% of acute rehab patients.”
Rao added, “The 75% rule is ridiculous in that it does not reflect the dynamic nature of the field and the cost benefit of rehab outcomes.”
Proposed Local Medical Review Policies
Several Medicare intermediaries also have drafted Local Medical Review Policies (LMRPs) that would reduce the number of Medicare-eligible IRF patients. LMRPs are used as a means of defining whether an individual beneficiary qualifies for services. The draft policies would disqualify many current patients based on the fiscal intermediaries’ questionable interpretation of the national Medicare criteria that determine the need for inpatient rehabilitation care.
In November 2003, ASHA submitted comments on the draft LMRPs that indicated erroneous applications of these criteria. The House appropriations bill also contains report language asking that the secretary of health and human services, who oversees CMS, delay implementation of the draft LMRPs concerning patient criteria for admission to IRFs until the Institute of Medicine issues a report recommending clinically appropriate standards for medical necessity.
For further information on the omnibus appropriations legislation, contact Neil Snyder by e-mail at or by phone through the Action Center at 800-498-2071, ext. 4257. For more information on ASHA’s previous comments to CMS on the 75% rule, contact Mark Kander by e-mail at or through the Action Center at ext. 4139.
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January 2004
Volume 9, Issue 1