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Dedicated to Lymphedema Patients and the Therapists Who Treat Them
Judge Accepts Medicare’s Plan To Remedy Misunderstanding On Therapy Coverage
By Susan Jaffe | February 3, 2017
This KHN story also ran on NPR. It can be republished for free (details).
A federal judge has accepted Medicare’s plans to try once more to correct a commonly held misconception that beneficiaries are eligible for coverage for physical and occupational therapy and other skilled care only if their health is improving.
“Confusion over the Improvement Standard persists,” wrote U.S. District Court Chief Judge Christina Reiss in Vermont in a decision released by the court Thursday. Advocates for seniors say coverage is often mistakenly denied simply because the beneficiary reaches “a plateau” and is no longer making progress.
The ruling comes after the 2013 settlement of a class action lawsuit against the U.S. Centers for Medicare & Medicaid Services. Under the settlement, the government conducted an education campaign for its claims processors and others to make sure they understood that improvement was not required as long as seniors otherwise qualified for coverage.
The beneficiaries’ lawyers argued — and the judge agreed — that the effort had failed and additional steps were necessary. She approved most of the suggestions for further actions proposed by the government last month and added two more proposed by the advocates.
“We are very hopeful that this will mean that there will be actual knowledge of and implementation of the settlement agreement so that with renewed energy and the imprimatur of CMS, providers will feel confident to give the care that people with long-term care conditions need,” said Judith Stein, executive director of the Center for Medicare Advocacy, one of the two groups that filed the lawsuit on behalf of five Medicare beneficiaries, including the late Glenda Jimmo, and six patient organizations.
Under Thursday’s order, the government will have a new website devoted to the 2013 settlement that will include information on how claims should be handled, as well as a simple explanation that improvement is not a criterion for coverage. The statement the judge accepted was largely written by the plaintiffs’ lawyers and says, in part, “that the Medicare program will pay for skilled nursing care and skilled rehabilitation services 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).”
The judge also told the government to hold a second training session on the policy for claims processors, appeals judges and others — something Medicare officials had opposed — and even told them how to describe it to avoid any misunderstanding. But she rejected the plaintiffs’ arguments that they should help develop the training and other messages so that the government would not repeat past mistakes.
These measures must be completed by Sept. 4. The government has 14 days to file an objection to the decision.
A Medicare spokesman reached Thursday afternoon declined to comment.
Although the order won’t affect seniors who have already been denied coverage, Stein said it can give them new ammunition for an appeal. “If they think the reason they were denied was because the skilled therapy or nursing care was provided to maintain their condition or slow deterioration,” she said, “then hopefully this will provide more strength for an appeal and in the future more strength for the provider to submit the claim as covered in the first case.”
CATEGORIES: Aging, Courts, Medicare, Syndicate
Jaffe.KHN@gmail.com | @SusanJaffe
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Update on Jimmo Settlement
By Robert Weiss | September 3, 2017
CMS has complied with the February court order to provide clarifications on covered therapy that does not require the expectation of functional improvement. On a special Jimmo Settlement web site https://www.cms.gov/Center/Special-Topic/Jimmo-Center.html CMS states:
Important Message About the Jimmo Settlement
The Centers for Medicare & Medicaid Services (CMS) reminds the Medicare community of the Jimmo Settlement Agreement (January 2013), 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 Agreement 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.
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 Agreement 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 a beneficiary is expected to improve. The Jimmo Settlement Agreement 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 inpatient rehabilitation hospitals for beneficiaries who need the level of care that such hospitals provide.
This web site gathers in one place various public documents relating to the Jimmo Settlement. Of particular interest is a list of 15 Frequently Asked Questions (FAQs) dated August 23, 2017 that provides an excellent clarification of the impact of the Jimmo Settlement on therapy practice. It should be the basis of CMS education efforts with their Medicare Administrative Contractors, and should be read and understood by every practicing therapist. https://www.cms.gov/Center/Special-Topic/Jimmo-Settlement/FAQs.html
I feel that this is of sufficient importance to repeat for my readers who include lymphedema patients as well as therapists.
Frequently Asked Questions (FAQs) Regarding Jimmo Settlement Agreement
Q1: What is the Jimmo Settlement Agreement (January 2013)?
A1: The Jimmo Settlement Agreement clarified that when a beneficiary needs skilled nursing or therapy services under Medicare’s skilled nursing facility (SNF), home health (HH), and outpatient therapy (OPT) benefits in order to maintain the patient’s current condition or to prevent or slow decline or deterioration (provided all other coverage criteria are met), the Medicare program covers such services and coverage cannot be denied based on the absence of potential for improvement or restoration. In short, what the Settlement Agreement and the resulting revised manual provisions clarify is that Medicare coverage for skilled nursing and therapy services in these settings does not “turn on” the presence or absence of a beneficiary’s potential for improvement, i.e., it does not matter whether such care is expected to improve or maintain the patient’s clinical condition. In addition, although such maintenance coverage standards do not apply to services furnished in an Inpatient Rehabilitation Facility (IRF) or a comprehensive outpatient rehabilitation facility (CORF), the Jimmo Settlement Agreement clarified that for services performed in the IRF setting, coverage should never be denied because a patient cannot be expected to achieve complete independence in the domain of self-care or because a patient cannot be expected to return to his or her prior level of functioning. The Jimmo Settlement Agreement provided that these clarifications be included in the Medicare Benefit Policy Manual.
Q2: What is the effect of the Jimmo Settlement Agreement on other requirements for receiving Medicare coverage?
A2: The Jimmo Settlement Agreement included language specifying that nothing in the settlement agreement modified, contracted, or expanded the existing eligibility requirements for receiving Medicare coverage. While the Jimmo Settlement Agreement resulted in clarifications of the coverage criteria for skilled nursing and therapy services in the SNF, HH, OPT, and IRF care settings, it did not affect other existing aspects of Medicare coverage and eligibility for these settings. A few examples of such other requirements would include that the services be reasonable and necessary, comply with therapy caps in the OPT setting, and not exceed the 100-day limit for Part A SNF benefits during a benefit period.
Q3: What are maintenance services addressed by the Jimmo Settlement Agreement?
A3: These are nursing or therapy services to maintain the patient’s condition or to prevent or slow further deterioration. Even though no improvement is expected, there may be specific instances in the SNF, HH, and OPT settings where the skills of a qualified therapist, registered nurse, or (when provided by regulation) a licensed practical nurse are required to perform nursing/therapy maintenance services that would otherwise be considered unskilled because of the patient’s special medical complications or where the needed services are of such complexity that the skills of such a practitioner are required to perform it safely and effectively. The Jimmo Settlement Agreement clarified that such skilled maintenance services are Medicare covered services.
Q4: How is coverage of skilled nursing and skilled therapy services under the SNF, HH, and OPT benefits to be determined?
A4: Coverage of skilled nursing and skilled therapy services under these benefits does not turn on the presence or absence of a beneficiary’s potential for improvement or restoration, but rather on the beneficiary’s need for skilled care. Skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition. A beneficiary’s lack of restoration potential cannot, in itself, serve as the basis for denying coverage under these benefits. An individualized assessment of the beneficiary’s medical condition and the reasonableness and necessity of the treatment, care, or services is required to determine coverage. Coverage for skilled care under these benefits is not available where the beneficiary’s care needs can be addressed safely and effectively through the use of unskilled personnel or caregivers. Any Medicare coverage or appeals decisions concerning skilled care coverage must reflect these basic principles. Claims for skilled care coverage must include sufficient documentation to substantiate that skilled care is required, that it was in fact provided, and that the services themselves are reasonable and necessary, thereby facilitating accurate and appropriate claims adjudication.
Q5: When are skilled nursing or therapy services to maintain a patient’s current condition or prevent or slow further deterioration covered under the SNF, HH, and OPT benefits, assuming all other coverage criteria are met?
A5: As long as all other coverage criteria are met, skilled nursing and therapy services that maintain the patient’s current condition or prevent or slow further deterioration are covered under the SNF, HH, and OPT benefits as long as an individualized assessment of the patient’s clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist, registered nurse or, when provided by regulation, a licensed vocational or practical nurse, are necessary in order for the maintenance services to be safely and effectively provided.
Skilled nursing care is necessary only when the needed services are of such complexity that the skills of a registered nurse, or (when provided by regulation), a licensed practical nurse are required to furnish the services, or the particular patient’s special medical complications require the skills of a such a practitioner to perform a type of service that would otherwise be considered non-skilled. However, when the individualized assessment of the patient’s clinical condition does not demonstrate such a need for skilled care, including when the services needed do not require skilled nursing care because they could safely and effectively be performed by the patient or unskilled caregivers, such maintenance services are not covered under the SNF or HH benefits.
Skilled therapy is necessary for the performance of a safe and effective maintenance program only when the needed therapy procedures are of such complexity that the skills of a qualified therapist are needed to perform the procedure, or the patient’s special medical complications require the skills of a qualified therapist to perform a therapy service that would otherwise be considered non-skilled. However, when the individualized assessment does not demonstrate such a need for skilled care, including when the performance of a maintenance program does not require the skills of a qualified therapist because it could be safely and effectively accomplished by the patient or with the assistance of non-therapists, including unskilled caregivers, such maintenance services are not covered under the SNF, HH, or OPT therapy benefits. To the extent provided by regulation, the establishment or design of a maintenance program by a qualified therapist, the instruction of the beneficiary or appropriate caregiver by a qualified therapist regarding a maintenance program, and the necessary periodic reevaluations by a qualified therapist of the beneficiary and maintenance program are covered to the degree that the specialized knowledge and judgment of a qualified therapist are required.
Q6: How can I find out if skilled nursing or therapy services are covered by Medicare for a particular condition?
A6: Medicare coverage for skilled nursing or therapy services is not determined solely by a patient’s specific medical condition. Rather, an individualized assessment of the patient’s medical condition, as documented in the patient’s medical record, would be necessary in order to determine coverage. For questions regarding specific conditions and whether skilled nursing or therapy services would be covered:
Providers & Suppliers: Contact your local Medicare Administrative Contractor (MAC)
Beneficiaries: Call 1-800-MEDICARE.
Q7: Can a patient change from an improvement course of care to a maintenance course of care, and vice versa?
A7: Yes. The therapy plan of care should indicate the treatment goals based on an individualized assessment or evaluation of the patient. Skilled services would be covered where such skilled 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. The health care provider must continually evaluate the individual’s need for skilled care, as well as whether such care meets Medicare’s overall requirement for being reasonable and necessary to diagnose or treat the individual’s condition, and make such determinations on an ongoing basis, altering – on a prospective and not a retrospective basis – the treatment plan and goals when necessary.
Q8: What is the role of “documentation” in facilitating accurate coverage determinations for claims involving skilled maintenance care?
A8: The revised Medicare Benefit Policy Manual provisions [Chapters 7(SNF), 8(HH), & 15(OPT)] include information on the role of appropriate documentation in facilitating accurate coverage determinations for claims involving skilled care. While the presence of appropriate documentation is not, in and of itself, an element of coverage, such documentation serves as the means by which a provider would be able to establish, and a Medicare contractor would be able to confirm, that skilled care is, in fact, needed and received in a given case. In revising the manual provisions pursuant to the settlement agreement, CMS has provided additional guidance in this area, both generally and as it relates to particular clinical scenarios.
We note that the manual revisions do not require the presence of any particular phraseology or verbal formulation as a prerequisite for coverage (although some areas of the Medicare Benefit Policy Manual do identify certain vague phrases like “patient tolerated treatment well,” “continue with POC,” and “patient remains stable” as being insufficiently explanatory to establish coverage). Rather, coverage determinations must consider the entirety of the clinical evidence in the file, and our enhanced guidance on documentation is intended to assist providers in their efforts to identify and include the kind of clinical information that can most effectively serve to support a finding that skilled care is needed and received— which, in turn, will help to ensure more accurate and appropriate claims adjudication.
Care must be taken to assure that documentation justifies the necessity of the skilled services provided. Justification for treatment would include, for example, objective evidence or a clinically supportable statement of expectation that, in the case of maintenance therapy, the skills of a qualified therapist are necessary to maintain, prevent, or slow further deterioration of the patient’s functional status, and the services cannot be safely and effectively carried out by the beneficiary personally, or with the assistance of non-therapists, including unskilled caregivers.
Q9: Can a patient receive therapy services from multiple disciplines with differing goals for restoration and maintenance?
A9: Yes. A comprehensive treatment plan does not require all disciplines to have the same goals. Once setting-specific qualifying criteria are met, each individual discipline creates a care plan specific to that discipline. Based on the qualified therapist’s assessment or evaluation and periodic reassessment or re-evaluation findings, each discipline will choose the most appropriate approach for the patient and must provide documentation that supports that decision.
Q10: How does the maintenance coverage standard under the Jimmo Settlement apply to skilled observation and assessment of homebound Medicare patients?
A10: As with all skilled nursing services under the HH benefit, skilled observation and assessment of the patient’s condition by a nurse is a Medicare covered service regardless of whether there is an expectation of improvement from the nursing care or whether the services are designed to maintain the patient’s current condition or prevent or slow further deterioration. Observation and assessment are reasonable and necessary skilled services where there is a reasonable potential for change in a patient's condition that requires skilled nursing personnel to identify and evaluate the patient's need for possible modification of treatment or initiation of additional medical procedures until the patient’s clinical condition and/or treatment regimen has stabilized.
Q11: If a patient is not improving or is not expected to return to his or her prior level of function from skilled nursing or therapy, does Medicare coverage for skilled nursing or skilled therapy services stop unless the patient deteriorates?
A11: The Medicare program does not require a patient to decline before covering medically necessary skilled nursing or skilled therapy. For a patient who had been expected to improve, but is no longer improving, a determination as to whether skilled care is needed to maintain the patient’s current condition or prevent or slow further deterioration must be made, and if such skilled care is needed, a plan of care to reflect the new maintenance goals must be developed. If, however, a patient is no longer improving and there is no expectation of improvement and skilled care is not needed to maintain the patient’s current condition or to prevent or slow further deterioration, such skilled care services would not be covered.
Q12: If a qualified therapist discontinues a Medicare patient’s outpatient therapy because the patient has stopped improving and the patient is not expected to return to his or her prior level of function, is additional therapy available?
A12: Yes, when the outpatient therapy services no longer meet the criteria for rehabilitative therapy service − whose goal is improvement of an impairment or functional limitation − the patient may be covered to receive skilled therapy services in certain circumstances as maintenance therapy under a maintenance program in order to maintain function or to prevent or slow decline or deterioration. Skilled therapy services are covered when the specialized judgment, knowledge, and skills of a qualified therapist are necessary for performance of a maintenance program, as previously discussed in response to Question 5. The deciding factors are always whether the services are considered reasonable, effective treatments for the patient’s condition and require the skills of a qualified therapist, or whether they can be safely and effectively carried out by non-skilled personnel or caregivers.
Q13: Where can I find examples that demonstrate the coverage requirements for skilled services?
A13: Chapters 7 (HH), 8 (SNF), and 15 (OPT) of the Medicare Benefit Policy Manual (100-02) contain many examples.
Q14: Does the Jimmo Settlement Agreement apply to Medicare patients whose health care providers are in Accountable Care Organizations (ACO)?
A14: Yes. Medicare patients who see health care providers that are participating in a Medicare ACO maintain all their Medicare rights, including application of the standards for coverage of skilled care as clarified by the Jimmo Settlement Agreement.
Q15: Does the Jimmo Settlement Agreement apply to beneficiaries in Medicare Advantage plans?
A15: Yes. Medicare Advantage plans must cover the same Part A and Part B benefits as original Medicare, and must also apply the standards for coverage of skilled care as clarified by the Jimmo Settlement Agreement.
Page last Modified: 08/23/2017 10:19 AM