Comment on AM97-Proposed Rule-Ronald A. White

Please consider our comments in the attached document. Comments on Department of Veterans Affairs 38 CFR Parts 51 and 58 PIN 2900-AM97 Per Diem for Nursing Home Care of Veterans in State Homes 1. Recognition and Certification: In 51.30(a)(1), with respect to the requirement that the recommendation be “based on a VA survey,” we propose that VA will not conduct the recognition survey for purposes of recognizing a home until (i) the facility under consideration for recognition has at least 21 residents or (ii) the number of residents in the facility equals 50% or more of the new bed capacity of the facility. Comments: a. We believe the requirement to have 21 residents is excessive. CMS only requires a nursing home to have three (3) residents to make their initial recognition survey to determine whether a facility can meet the standards. b. We believe it is important to also consider the financial impact on veterans waiting for admission. The vast majority of veterans waiting admission cannot afford to cover the full room rate while waiting for VA recognition and the start of the VA per diem. Finding 21 individuals who can afford to pay the full room rate while waiting for the CENSUS to reach at least 21 could take several months. Mean while the veterans who need immediate assistance will be forced to wait, especially in Texas where our occupancy rate is 97% in our current state homes. 2. Rate Based on Service Connection: Proposed 51.41(a) reflects these statutory providions. The proposal interprets the statutory eligibility provisions for veterans who have “a service-connected disability rate at 70 percent or more” to cover veterans with “a singular or combined rating of 70 percent or more based on one or more service- connected disabilities or a rating of total disability based on individual unemployability.” Comments: a. Would this apply to an individual who has a service connected disability of zero, but due to injuries that were not service connected that resulted in them getting a rating of total disability based on individual unemployabitlity? 3. Rate Based Service Connection: Continued—“We propose to establish criteria for determining the applicable or prevailing rate payable in the geographic area based on the information provided below. VA’s per diem rate based on service connection will be a daily rate that will include both direct nursing home care charges and physician charges. The Federal Medicare program reimburses nursing homes for skilled nursing home care provided to Medicare beneficiaries. The Center for Medicare & Medicaid Services (CMS) administers the Medicare program and thus has developed a national system for paying for this care. The current system has been used and improved since 1997. In our view, this system, which does not include physician charges, comes closest to determining what the reimbursement rate per day for nursing home care should be in a manner that is analytically based and that considers the cost differences in all parts of the United States.” Comments: a. The average nursing home from which this data is provided is caring for a population who’s average age is 70 years old. We on the other hand are servicing an average age of 84 years old b. The average nursing home for which this data is derived is caring for a population which is not only younger but is predominately female. They are more healthy and have less acuity than the state veteran home population. 4. Rate Based Service Connection: Continued – “VA is considering a modification to the proposed payment structure to be introduced after two or three years of experience with the RUG III approach. In the modification, VA would use the actual case-mix of the individual state veteran nursing home to determine the reimbursement rate, rather than assuming that every nursing home has an equal number of veterans in each of the 53 RUG III levels.” Comments: a. Please keep in mind that the current MDS 2.0 is changing to MDS 3.0 in October 2009, which will include the new Medicaid RUGs for which we are all still awaiting information. b. Why not use the current data for just our state veterans homes to determine our rate? We have been in the MDS system since we opened our doors. Our older homes have at least 8 years worth of data. c. Another point to keep in mind the initial approach at least in Texas was not to take Medicare patients, so the data is not accurate. Most homes in Texas averaged less than 10 Medicare patients a month. d. We need to keep in mind anyone who is 70% or greater service connected disabled is logically likely to have more acute care needs than the average veteran anyway. So, taking an average and applying it is not going to accurately depict these residents cost of care. You would need to review only the 70% or greater service connected residents in each home and their cost of care only, otherwise the cost burden for the residents care will fall on the facility in an unfair fashion. 5. Rate Based Service Connection: Continued – “The proposed physician charge would be a daily charge based on information set forth in the SMS and Supplemental Survey PE/HR which was published by the American Medical Association until 1999 and is used by CMS to develop the practice expense portion of the Medicare physician fee schedule amounts. To find the daily charge we would use the average hourly rate for all physicians from the fee schedule and modify this hourly rate by the applicable geographic adjustment factor used under the Medicare physician fee schedule for the area where the State home is located. We would use the modified hourly rate as the monthly visit rate based on our finding that the total time for the multiple physician visits during the month would average approximately one hour. We would then multiply the modified hourly rate by 12 (months in year) and then divide it by the number of days in the year. This daily rate would be added to the average per diem, described above. We are using an hourly rate and geographic index that does not include business taxes or malpractice expenses. This is because most states provide physician services using salaried state employees.” Comments: a. Texas does not use physician services that are salaried state employees. Will there be a provision to offset our situation? b. Why not still allow states such as Texas to continue to use Medicare Part B services to pay the cost of physician services, as we are currently doing? This rate does consider the business taxes and malpractice expenses. c. 70% service connected disabled veterans are likely to need more than an hour of physician services a month due to their acuity. d. This issue leads us to logically then consider that the state will then be obligated to pay any outside doctor/specialist cost, unless our residents are going to get the same priority as VA Nursing Home patients for VA care? Again without the same VA priority (in patient status) outside services will be prohibitive for the state to absorb. 6. Drugs and Medicines Based on Service Connection: Comments: a. Are we now referring to any veteran with any designated service connected disability the VA has on file? b. Would this then apply to the 70% or greater disabled resident as well? c. We were led to believe the legislation stated all veterans with a 50% or greater service connected disability would get all their medications provided by the VA free regardless of a financial need determination. Where is this provision in your proposed rules? d. If any veteran with any service connected disability will get his/her medication associated with that disability from the VA at no cost, who will determine if the medication is applicable to that qualifying disability? How fast will the VA make that determination? 7. Forms – No comments 8. Bed Holds – “In addition, we propose that per diem for a bed hold will be paid only for the first ten (10) consecutive overnight absences at a VA or other hospital (this could occur more than once in a calendar year) and for the first twelve (12) other types of overnight absences in a calendar year.” “However, a limit of ten (10) consecutive overnight hospital absences and a limit of twelve (12) other overnight absences in a calendar year are consistent with many Medicaid State plans which generally provide for bed holds of around 12 days.” Comments: a. In the first paragraph you imply that “ the VA will be willing to pay for the first ten (10) consecutive overnight absences at a VA or other hospital (this could occur more than once in a calendar year) and”, but in the second paragraph you site that the limit will be for only ten (10) consecutive overnight hospital absences. Which is it? One time payment for up to ten (10) consecutive overnight hospital absences or any number of overnight hospital absences but only up to ten consecutive days maximum period each time. 9. Bed Holds: Continued – “Further, there is no need to pay per diem for bed holds for those facilities with an occupancy of less than 90 percent because it is unlikely that those facilities would fill the bbed of an absent resident.” Comments: a. This will have more of an impact on the veteran more than the VA. The state policy is to collect a daily bed hold rate from each resident for whatever period of time they are out of the building or discharge the resident and fill the bed. Our program occupancy rate is just over 96%. Our typical time to fill a bed is less than a week, sometimes the very next day. We have an active waiting list in each of our facilities. b. We have to be ready to meet that residents need any day they may return to the facility. So, our cost of maintaining that capability is not lowered by virtue of the percentage rate of occupancy unless the CENSUS remains low for a period of time. c. How will this affect a newly opened state veterans home? We would propose that newly opened facilities be granted an exception for the first two years of operation. This affords them the time to safely fill the building to the 90 % occupancy rate. 10. Miscellaneous – No Comments 11. Resident Rights – No Comments 12. Physician Services – Role of Advanced Practice Nurse – No Comments 13. Social Worker – No Comments 14. Resident Assessment – No Comments 15. Phsical Environment – No Comments