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Medicare Agrees to Provide Better Access to Nursing Home, Home Health Care and Outpatient Therapy Services

By Anthony Szczygiel, J.D., Professor, University at Buffalo School of Law

February 22, 2013

 Editor’s Note: Person-centered care has had a positive effect on Medicare regulations across the board in recent years. This continues to be the trend now that the federal government has taken into consideration maintenance therapy services, in both home and skilled environments, to help individuals maintain their level of functioning, especially as it relates to those with chronic, debilitating diseases and comorbidities.

Medicare is formally rejecting the “improvement standard” that has blocked many members from getting needed therapy or nursing services.  To settle a lawsuit, the federal agency has clarified its policy on “skilled care.”  The updated policy defines skilled care as that which can only be performed safely and effectively by, or under the supervision of, a qualified therapist or nurse.  In the case of a therapist, the covered services can include a maintenance therapy program.

The Settlement Agreement in Jimmo v. Sibelius is effective now.   No longer is it a good reason to terminate therapy, or refuse to start services, because the individual has “plateaued” or the services were for “maintenance.” Rather than asking whether the care will help the individual to improve, the key question is whether the individual’s condition requires the qualified therapist or a registered nurse to be involved in their care.  This means that Medicare will cover skilled services needed to maintain the individual’s current condition or to prevent or slow further decline.

The skilled services are those provided by either a qualified therapist or a registered nurse (RN).  They apply to home health, skilled nursing facility and outpatient therapy settings.

The plaintiffs said that in many cases providers denied these services by labeling the person’s condition as “stable”, “not improving”, “maintenance” or “has reached maximum potential”   The result was twofold:

1) the member no longer got skilled services that would help them; and

2) without the skilled services, Medicare no longer helps to pay for nursing home care, or home health care.

The clarified standards can help anyone on Medicare, whether on traditional Parts A and B or in a Medicare Advantage Plan.  Almost all individuals over the age of 65 are Medicare members.  Also, a large number of younger disabled individuals are enrolled in Medicare.

The plaintiffs said that the “improvement standard” especially hurt patients with chronic conditions such as Multiple Sclerosis, Alzheimer’s disease, Parkinson’s disease and paralysis.

Medicare will not cover services when the member or unskilled caregivers can provide all that is needed.  For example, when a maintenance program does not require the skills of a therapist because it could safely and effectively be done by the patient or with the help of non-therapists, such services will not be covered.

The Agreement does not change the scope of Medicare benefits for nursing homes or home health care.  Medicare can cover up to 100 days in a nursing home, after a three-day hospital stay.  Plaintiffs said many nursing homes improperly cut off members well before the 100 days were used.  For example, therapy would be stopped because of a “lack of improvement.”  The clarified standards may allow more individuals to make full use of this Medicare benefit.  Therapy services provided after the 100 days may be covered by Medicare, but not the full room and board.

There is no day limit or annual cap for therapy services provided through a Certified Home Health Agency (CHHA).  However, many CHHAs limit their case load to short term cases, with therapy programs that only last two to four weeks.  Once the CHHA ends the therapy, the member also loses the home health aide services included in the Medicare home care benefit.  The clarified standards may allow more members access to the home care benefit, and the home care benefit may continue for a longer time.

The Center for Medicare Advocacy is the lead law firm in this national class action, Jimmo v. Sibelius.  Their website links to the court documents and other helpful materials.

See, http://www.medicareadvocacy.org/hidden/highlight-improvement-standard.

The Center believes that this settlement will not increase the cost of the Medicare program, and in fact may provide cost savings.

The skilled maintenance nursing and therapy that is at the heart of the Settlement is usually low-cost, low-tech care that will often prevent the individual from declining further and requiring more intense, more expensive care.  In addition to being the right and legal thing to do, covering services such as those included in the Settlement Agreement may actually be more cost-effective than failing to provide these services.

In an October 24, 2012 editorial, “A Humane Medicare Rule Change,” http://www.nytimes.com/2012/10/24/opinion/a-humane-medicare-rule-change.html?partner=rssnyt&emc=rss, the New York Times recognized the proposed Jimmo settlement as reversing an “irrational and unfair approach to medical services.” The Times also noted that significant cost savings could result from covering necessary services to maintain an individual’s condition. As The Times recognized, when people receive medically necessary nursing and therapy services that enable them to maintain their functioning or slow their decline, many are able to stay home and avoid expensive hospitalization and nursing home care.