Access to Inpatient Rehabilitation Therapy Act of 2022
This bill allows, for purposes of Medicare payment, an intensive rehabilitation therapy program to include other skilled therapeutic modalities besides physical therapy, occupational therapy, speech language pathology services, or orthotic and prosthetic services, as recommended by the treating physician after the patient is admitted. The bill applies after December 31, 2022, or the last day of the COVID-19 public health emergency, whichever is earlier.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8746 Introduced in House (IH)]
<DOC>
117th CONGRESS
2d Session
H. R. 8746
To amend title XVIII of the Social Security Act to restore physician
judgment to prescribe the appropriate mix of skilled modalities that
constitute an intensive rehabilitation therapy program in an inpatient
rehabilitation hospital or unit.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 26, 2022
Mr. Courtney (for himself, Mr. Thompson of Pennsylvania, and Mr.
Butterfield) introduced the following bill; which was referred to the
Committee on Ways and Means
_______________________________________________________________________
A BILL
To amend title XVIII of the Social Security Act to restore physician
judgment to prescribe the appropriate mix of skilled modalities that
constitute an intensive rehabilitation therapy program in an inpatient
rehabilitation hospital or unit.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Access to Inpatient Rehabilitation
Therapy Act of 2022''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Intensive, coordinated medical rehabilitation provided
in inpatient rehabilitation hospitals and units is critical to
Medicare beneficiaries with injuries, illnesses, disabilities,
and chronic conditions in order to return to health, full
function, independent living, and a high quality of life.
(2) The Centers for Medicare & Medicaid Services (in this
section referred to as ``CMS'') uses an ``intensity of
therapy'' requirement to help determine which Medicare
beneficiaries are appropriate for treatment in an inpatient
rehabilitation hospital or unit. CMS has interpreted the
intensity of therapy requirement through application of the so-
called ``Three Hour Rule'' (42 C.F.R. 412.622(a)(3)(ii)) which
requires the patient to be able to participate in three hours
of rehabilitation therapy per day, five days per week, or 15
hours of rehabilitation therapy over a one-week period.
(3) In 1989, a Federal district court held that ``Medicare
determinations for hospital rehabilitation care are to be based
upon an assessment of each individual patient's need for care''
and ``denials of admissions, services, and/or Medicare coverage
based upon numerical utilization screens, diagnostic screens,
diagnosis, specific treatment norms, the `Three Hour Rule', or
other `rules of thumb' are not appropriate.'' Hooper v.
Sullivan, No. H-80-99 (D. Conn. 1989).
(4) Before 2010, a CMS ruling explicitly stated that
physical therapy, occupational therapy, speech therapy, and
orthotics and prosthetics were counted toward the Three Hour
Rule on an as-needed basis. In addition, the CMS ruling stated
that ``other therapeutic modalities'' that were determined by
the physician and the rehabilitation team to be needed by the
patient ``on a priority basis'' would quality toward
satisfaction of the rule (HCFA Ruling 85-2).
(5) This language allowed physicians with specialized
training and experience in inpatient hospital rehabilitation to
prescribe the mix of skilled therapies and services appropriate
to meet the needs of each individual patient in order to
satisfy the Three Hour Rule in the inpatient rehabilitation
hospital or unit setting.
(6) CMS by regulation (74 Fed. Reg. 39811 (August 7, 2009))
revised these prior requirements, effective January 1, 2010.
The Secretary of Health and Human Services acknowledged that he
is bound by the court's decision in Hooper v. Sullivan that
``rules of thumb'', including the Three Hour Rule, may not be
imposed to deny IRF coverage. The Secretary stated that he
would ``monitor the appropriateness of instances where IRFs
demonstrate the required level of intensity'' without meeting
the Three Hour Rule.
(7) The Secretary's 2010 regulation limited the Three Hour
Rule to recognize only four skilled services (namely, physical
therapy, occupational therapy, and speech language pathology
services as well as orthotics and prosthetics) and required
that the patient's physician must certify that the patient
requires, at admission, at least two of the four therapy
modalities, one of which must be either physical therapy or
occupational therapy. The Secretary's 2010 regulation removed
the discretion of the physician, in consultation with the
rehabilitation team, to prescribe other skilled modalities and
therapeutic services needed by the patient that would count
toward satisfaction of the Three Hour Rule. As a result, the
full complement of medically necessary, skilled therapy
services may not be available to inpatient rehabilitation
hospital patients as part of their plan of care.
(8) Skilled, therapeutic modalities in addition to physical
therapy, occupational therapy, speech language pathology
services, and orthotic and prosthetic services that should be
counted toward the Three Hour Rule include recreational therapy
services, respiratory therapy, and other skilled modalities as
determined by the Secretary when such skilled services are
medically necessary and prescribed by a physician as part of
the patient's plan of care.
(b) Purpose.--The purpose of this Act is to restore reliance on the
professional judgment of the treating physician, in consultation with
the rehabilitation team, when determining whether a Medicare patient
meets the intensity of therapy requirement of an inpatient
rehabilitation hospital or unit in order for that patient to gain
access to the appropriate mix of medically necessary, rehabilitation
services in that setting. This Act retains the current requirement that
the patient must need at admission physical therapy, occupational
therapy, speech language pathology services, or orthotic and prosthetic
services but permits the patient's physician to modify the intensive
rehabilitation therapy program after admission to include additional
necessary therapy modalities.
SEC. 3. PHYSICIAN JUDGEMENT TO DETERMINE THE THERAPY MODALITIES THAT
CONSTITUTE AN INTENSIVE REHABILITATION THERAPY PROGRAM IN
DETERMINING THE MEDICAL NECESSITY OF SERVICES IN AN
INPATIENT REHABILITATION FACILITY.
(a) In General.--Section 1886(j) of the Social Security Act (42
U.S.C. 1395ww(j)) is amended by adding at the end the following new
paragraph:
``(9) Physician judgement to determine the therapy
modalities that constitute an intensive rehabilitation therapy
program in a rehabilitation facility.--In the case of a claim
for payment under the prospective payment system under this
subsection with respect to a discharge of an individual, in
implementing section 412.622 of title 42, Code of Federal
Regulations (or any successor to such regulation) for purposes
of determining if items and services with respect to such
discharge are to be considered reasonable and necessary under
section 1862(a)(1), the Secretary shall provide that an
intensive rehabilitation therapy program described in paragraph
(a)(3)(ii) of such section 412.622--
``(A) shall, at the time of the admission
associated with such discharge, consist of physical
therapy, occupational therapy, speech language
pathology services, or orthotic and prosthetic services
(or any combination thereof); and
``(B) may, after such admission, be modified by the
rehabilitation physician treating such individual to
include other skilled therapeutic modalities, including
recreational therapy, respiratory therapy, and other
skilled services specified by the Secretary.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to admissions occurring after December 31, 2022, or the last day
of the emergency period described in section 1135(g)(1)(B) of the
Social Security Act (42 U.S.C. 1320b-5(g)(1)(B)), whichever is sooner.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Ways and Means.
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