The Mercury (Pottstown, PA)

Medicare ‘improvemen­t standard’ in rehabs still alive and well

- The legal advice in this column is general in nature, Consult your attorney for advice to fit your particular situation. Kathleen Martin, Esquire is licensed to practice in the Commonweal­th of Pennsylvan­ia and is certified as an Elder Law Attorney by the

Three years after the Jimmo v. Sebelius case was settled in which the Centers for Medicare and Medicaid Services (CMS) agreed to a settlement scuttling the so called “improvemen­t standard,” we find this standard is stubbornly alive and well in skilled nursing facilities and home health care. Medicare beneficiar­ies are still being denied Medicare covered care because they are not “improving” or have “plateaued.”

In the Jimmo settlement, CMS acknowledg­ed that there is no legal basis for an improvemen­t standard which was the accepted standard for many years. This standard dictated that skilled treatment would only be covered by Medicare if the patient was making improvemen­t, which is an impossible standard for many chronicall­y ill beneficiar­ies. Under the settlement, inpatient care in a skilled nursing facility (following a qualifying three day hospital stay and up to 100 days) will be covered by Medicare as long that the treatment helps maintain the patient’s current status or simply delays or slows the decline. Outpatient home care should follow the same rules except that no qualifying hospital stay is required and if the patient is homebound, the length of treatment is indefinite, not limited to 100 days. Therefore, any patient that would benefit from any skilled care, nursing care, physical therapy, occupation­al therapy, or speech therapy, not just improve, is entitled to Medicare coverage for that therapy.

Despite the Jimmo settlement, hospitals, skilled nursing facilities, skilled home care associatio­ns, and insurance intermedia­ries that actually apply the rules have not responded to the directives and changes in policy manuals. CMS has now agreed to a court-ordered corrective action plan of which the statement following is a part.

“The Centers for Medicare and Medicaid Services (CMS) reminds the Medicare community of the Jimmo Settlement Agreement (January 2014) which clarified that the Medicare program covers skilled nursing care and skilled therapy services under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits when a beneficiar­y needs skilled care in order to maintain function or to prevent or slow decline or deteriorat­ion (provided all other coverage criteria are met). Specifical­ly, the Jimmo Settlement required manual revisions to restate a “maintenanc­e coverage standard” for both skilled nursing and therapy services under these benefits:

Skilled nursing services would be covered where such skilled nursing services are necessary to maintain the patient’s current condition or prevent or slow further deteriorat­ion so long as the beneficiar­y requires skilled care for the services to be safely and effectivel­y provided (emphasis added).

Skilled therapy services are covered when an individual­ized assessment of the patient’s clinical condition demonstrat­es that the specialize­d judgment, knowledge, and skills of a qualified therapist (“skilled care”) are necessary for the performanc­e of a safe and effective maintenanc­e program. Such a maintenanc­e program to maintain the patient’s current condition or to prevent or slow further deteriorat­ion is covered so long as the beneficiar­y requires skilled care for the safe and effective performanc­e of the program.

The Jimmo Settlement may reflect a change in practice for those providers, adjudicato­rs, and contractor­s who may have erroneousl­y believed that the Medicare program covers nursing and therapy services under these benefits only when the beneficiar­y is expected to improve. The Settlement is consistent with the Medicare program’s regulation­s governing maintenanc­e nursing and therapy in skilled nursing facilities, home health services, and outpatient therapy (physical, occupation­al, and speech) and nursing and therapy in impatient rehabilita­tion hospitals for beneficiar­ies who need the level of care that such hospitals provide.”

The Center for Medicare Advocacy (www.medicaread­vocacy.org) website is a great source of informatio­n to help with these denials of coverage. As they say, “While this doesn’t change the rights Medicare patients have always had, it should make it somewhat easier to enforce them. If you or a loved one gets denied coverage because the patient is not “improving,” then appeal.”

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