[Congressional Record Volume 151, Number 95 (Thursday, July 14, 2005)]
[Senate]
[Pages S8318-S8320]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. NELSON of Nebraska (for himself, Mr. Santorum, and Mr. 
        Corzine):
  S. 1405. A bill to extend the 50 percent compliance threshold used to 
determine whether a hospital or unit of a hospital is an inpatient 
rehabilitation facility and to establish the National Advisory Council 
on Medical Rehabilitation; to the Committee on Finance.
  Mr. NELSON of Nebraska. Mr. President, today I am introducing the 
``Preserving Patient Access to Inpatient Rehabilitation Hospitals Act 
of 2005'' to make changes to a rule issued by the Centers for Medicare 
and Medicaid Services, (CMS) that would threaten the ability of 
rehabilitation hospitals to continue to provide critical care.

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  In my home State of Nebraska, Madonna Rehabilitation Hospital in 
Lincoln is a nationally-recognized premier rehabilitation facility that 
offers specialized programs and services for those who have suffered 
brain injuries, strokes, spinal cord injuries, and other rehabilitating 
injuries. If this rule is not updated, Madonna would not be able to 
offer the same critical care to its patients as it currently does.
  When CMS first looked at whether facilities would qualify as an 
inpatient rehabilitation facility (IRF), a list of criteria was created 
to determine eligibility. The criteria, generally referred to as the 
``75 Percent Rule,'' were first established in 1984. Initially ten 
categories were given. When the Rule was revised last year, three 
categories were added. To qualify as an IRF under the 75 Percent Rule, 
75 percent of a facility's patients must be receiving treatment in one 
of these specified conditions.
  On its face, it appeared that CMS expanded the Rule last year by 
increasing the number of conditions from 10 to 13 and giving facilities 
a phase-in period to adjust to the changes. Initially the threshold for 
compliance was set at 50 percent for the first year and continues to 
rise until it reaches 75 percent in July 2007.
  Facilities are struggling to even meet the 50 percent compliance rate 
in part because the expansion of categories is illusory. The rule will, 
by CMS' own estimate, shift thousands of patients--both Medicare and 
non-Medicare--into alternative care settings that may be inappropriate. 
CMS projected a patient loss of 1,170 admissions in FY 2005. A recent 
Moran Company report showed that in the first year alone, hospitals 
have been forced to deny care to between 25,000-40,000 patients to 
maintain compliance with the new 75 Percent Rule. By the fourth year of 
the Rule, IRFs will be forced to turn away one out of every three 
patients in order to operate as a rehabilitation hospital or unit.
  My legislation will ensure that patients across America will continue 
to have access to the rehabilitative care they need, and that experts 
in this community are organized to advise and make recommendations to 
Congress and the appropriate Federal agencies based on the realities 
and challenges facing the rehabilitative field today and in the future. 
The legislation provides an additional two years at the 50 percent 
threshold to give facilities additional time to adjust to the new 
categories and sets up a commission to advise Federal agencies on 
rehabilitative care and what categories are appropriate to be included 
in the 75 Percent Rule.
  I am pleased that many prestigious organizations have joined me in 
supporting the legislation. The American Hospital Association, the 
American Academy of Physical Medicine and Rehabilitation, the 
Federation of American Hospitals, the American Medical Rehabilitation 
Providers Association and numerous other associations and advocacy 
groups have endorsed the legislation. Just as I have heard from 
patients and medical providers who have experienced problems with this 
Rule, the members of these associations are also witnessing the 
devastating effect the Rule is having on those who need this critical 
care. In addition, Senator Santorum is co-sponsoring this bipartisan 
effort.
  I urge my colleagues to support this legislation, and I look forward 
to its passage.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1405

       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 ``Preserving Patient Access to 
     Inpatient Rehabilitation Hospitals Act of 2005''.

     SEC. 2. EFFECT ON ENFORCEMENT OF REGULATIONS.

       (a) In General.--Notwithstanding section 412.23(b)(2) of 
     title 42, Code of Federal Regulations, during the period 
     beginning on July 1, 2005, and ending on the date that is 2 
     years after the date of enactment of this Act, the Secretary 
     of Health and Human Services (referred to in this Act as the 
     ``Secretary'') shall not--
       (1) require a compliance rate, pursuant to the criterion 
     (commonly known as the ``75 percent rule'') that is used to 
     determine whether a hospital or unit of a hospital is an 
     inpatient rehabilitation facility (as defined in the rule 
     published in the Federal Register on May 7, 2004, entitled 
     ``Medicare Program; Final Rule; Changes to the Criteria for 
     Being Classified as an Inpatient Rehabilitation Facility'' 
     (69 Fed. Reg. 25752)), that is greater than the 50 percent 
     compliance threshold that became effective on July 1, 2004;
       (2) change the designation of an inpatient rehabilitation 
     facility in compliance with the 50 percent threshold; or
       (3) conduct medical necessity review of inpatient 
     rehabilitation facilities using any guidelines, such as 
     fiscal intermediary Local Coverage Determinations, other than 
     the national criteria established in chapter 1, section 110 
     of the Medicare Benefits Policy Manual.
       (b) Retroactive Status as an Inpatient Rehabilitation 
     Facility; Payments; Expedited Review.--The Secretary shall 
     establish procedures for--
       (1) making any necessary retroactive adjustment to restore 
     the status of a facility as an inpatient rehabilitation 
     facility as a result of subsection (a);
       (2) making any necessary payments to inpatient 
     rehabilitation facilities based on such adjustment for 
     discharges occurring on or after July 1, 2005 and before the 
     date of enactment of this Act; and
       (3) developing and implementing an appeals process that 
     provides for expedited review of any adjustment to the status 
     of a facility as an inpatient rehabilitation facility made 
     during the period beginning on July 1, 2005 and ending on the 
     date that is 2 years after the date of enactment of this Act.

     SEC. 3. NATIONAL ADVISORY COUNCIL ON MEDICAL REHABILITATION.

       (a) Definitions.--In this section:
       (1) Advisory council.--The term ``Advisory Council'' means 
     the National Advisory Council on Medical Rehabilitation 
     established under subsection (b).
       (2) Appropriate federal agencies.--The term ``appropriate 
     Federal agencies'' means--
       (A) the Agency for Healthcare Research and Quality;
       (B) the Centers for Medicare & Medicaid Services;
       (C) the National Institute on Disability and Rehabilitation 
     Research; and
       (D) the National Center for Medical Rehabilitation 
     Research.
       (b) Establishment.--Pursuant to section 222 of the Public 
     Health Service Act (42 U.S.C. 217a), the Secretary shall 
     establish an advisory panel to be known as the ``National 
     Advisory Council on Medical Rehabilitation''.
       (c) Membership.--
       (1) Appointment.--The Advisory Council shall be composed of 
     17 members, of whom--
       (A) 9 members shall be appointed by the Secretary, in 
     consultation with the medical rehabilitation community, from 
     a diversity of backgrounds, including--
       (i) physicians;
       (ii) medicare beneficiaries;
       (iii) representatives of inpatient rehabilitation 
     facilities; and
       (iv) other practitioners experienced in rehabilitative 
     care; and
       (B) 8 members, not more than 4 of whom are members of the 
     same political party, shall be appointed jointly by--
       (i) the Majority Leader of the Senate;
       (ii) the Minority Leader of the Senate;
       (iii) the Speaker of the House of Representatives;
       (iv) the Minority Leader of the House of Representatives;
       (v) the Chairman and the Ranking Member of the Committee on 
     Finance of the Senate; and
       (vi) the Chairman and the Ranking Member of the Committee 
     on Ways and Means of the House of Representatives.
       (2) Date.--Members of the Advisory Council shall be 
     appointed not later than 30 days after the date of enactment 
     of this Act.
       (3) Period of appointment; vacancies.--Members shall be 
     appointed for the life of the Council. A vacancy on the 
     Advisory Council shall be filled not later than 30 days after 
     the date on which the Advisory Council is given notice of the 
     vacancy, in the same manner as the original appointment.
       (4) Meetings.--
       (A) Initial meeting.--The Advisory Council shall conduct an 
     initial meeting not later than 120 days after the date of 
     enactment of this Act.
       (B) Meetings.--The Advisory Council shall conduct such 
     meetings as the Council determines to be necessary to carry 
     out its duties but shall meet not less frequently than 2 
     times during each calendar year.
       (d) Duties.--The duties of the Advisory Council shall 
     include the following:
       (1) Advice and recommendations.--Providing advice and 
     recommendations to--
       (A) Congress and the Secretary concerning the coverage of 
     rehabilitation services under the medicare program, 
     including--
       (i) policy issues related to rehabilitative treatment and 
     reimbursement for rehabilitative care, such as issues 
     relating to any rulemaking relating to, or impacting, 
     rehabilitation hospitals and units;
       (ii) the appropriate criteria for--

       (I) determining clinical appropriateness of inpatient 
     rehabilitation facility admissions; and
       (II) distinguishing an inpatient rehabilitation facility 
     from an acute care hospital and

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     other providers of intensive medical rehabilitation;

       (iii) the efficacy of inpatient rehabilitation services, as 
     opposed to other post-acute inpatient settings, through a 
     comparison of quality and cost, controlling for patient 
     characteristics (such as medical severity and motor and 
     cognitive function) and discharge destination;
       (iv) the effect of any medicare regulations on access to 
     inpatient rehabilitation care by medicare beneficiaries and 
     the clinical effectiveness of care available to such 
     beneficiaries in other health care settings; and
       (v) any other topic or issue that the Secretary or Congress 
     requests the Advisory Council to provide advice and 
     recommendations on; and
       (B) appropriate Federal agencies (as defined in subsection 
     (a)(3)) on how to best utilize available research funds and 
     authorities focused on medical rehabilitation research, 
     including post-acute care site of service and outcomes 
     research.
       (e) Periodic Reports.--The Advisory Council shall provide 
     the Secretary with periodic reports that summarize--
       (1) the Council's activities; and
       (2) any recommendations for legislation or administrative 
     action the Council considers to be appropriate.
       (f) Termination.--The Advisory Council shall terminate on 
     September 30, 2010.
       (g) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to carry out 
     the purposes of this section.
       (h) Effective Date.--This section shall take effect on the 
     date of enactment of this Act.
                                 ______