[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8746 Introduced in House (IH)]

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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.
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