|Readers of this column have occasionally seen reference made to Medicare PPS record keeping as something akin to rocket science. With all the A8bs, B5fs, M2as, G1h(A)s, etc., involved, the Minimum Data Set does look for all the world like an engineering document. For those who have difficulty keeping such things straight-including many who thought they went into long-term care to take care of patients-it is little wonder that many get confused and disoriented when doing the paperwork. It was no surprise when an early study of PPS documentation found nursing facilities “overcoding” about 40% of the time and “undercoding” about 30%, for no apparent reason. But that is only part of the problem I wish to address here.|
I don’t know how often I’ve sat at various conventions and convocations and watched audiences sit in perplexed wonder-sometimes grumbling, sometimes shaking their heads-as a nice, obviously dedicated public servant from the Centers for Medicare and Medicaid Services (CMS) attempts to explain the latest regulatory missive emanating from a small office somewhere in Washington or Baltimore. The presentations-so calm, so seemingly informal-nevertheless have the force of law behind them, and therefore much potential for risk exposure. Yet there are times when no one, including the speaker, has the answer for a particularly confused audience member. People are sometimes left guessing, and hoping that CMS, or the Office of the Inspector General, or the Department of Justice, won’t come down hard on them for guessing wrong.
Sometimes there is publicly expressed anger. Washington Editor Michael J. Stoil recalls a CMS spokesperson fielding angry comments from nursing home administrators during a reimbursement presentation and looking himself confused. “What are they yelling at me for?” his expression seemed to say.
The fact is, there is a real disjuncture here-a sort of “living in two worlds,” when government regulation is addressed in public forums. It’s not a matter of federal government “heavies” trying to bully their hapless charges into shape. Nor is it a matter of industry “bad guys” wishing regulation would just go away so they can work their nefarious ways unimpeded. No, it’s a situation in which honest, hardworking people on both sides just don’t get it-but with the penalties for getting things wrong being potentially very high.
An article in this issue (“Here Come the Rehab Therapy Caps,” pg. 35) was intended as a modest effort to get at this conundrum. Yours truly worked hard to translate the relevant CMS Program Memorandum into language that most readers would understand. The CMS officials who worked with me on this did their conscientious best, although at times seeming perplexed that the “PM” they understood so well lacked clarity, at least for this writer. All in all, it was a hard go; language is slippery, and misinterpretation and befuddlement lurk near at hand for the unwary. Thanks to their patience, I think (hope) this article has it right.
The underlying problem here is our system of prescriptive regulation, i.e., regulations that attempt to spell out a legislative mandate in operational detail. Like many prescriptions, they’re often barely legible and open to guesswork. Prescriptive regulations try to do too much. So, my modest proposal: Would it be possible, someday, somehow, for government to look into proscriptive regulation? By “proscriptive” I mean regulations that simply set the boundaries for illegal, dishonest or incompetent behavior, and let the day-to-day operators figure out the rest. Is there any legal, administrative, or otherwise official reason this couldn’t at least be considered?
All right, maybe that’s not such a modest proposal. But it’s offered with humility and animus toward no one-and with a growing concern that government and the private sector are moving steadily apart in what should be mutually supportive efforts toward providing quality long-term care. Overreaching vs incomprehension is a game we can’t afford to play anymore. NH