Jimmo v. Sebelius – Medicare Lawsuit

Jimmo V. Sebelius is a court case we have all been hearing about and reading about on the internet. The case involved Medicare beneficiaries and The Center for Medicare Advocacy (non-for-profit) who filed a lawsuit regarding what they have termed the improvement standard by which Medicare beneficiaries who could benefit from services were denied services because they could not make enough progress. The Medicare regulations never held such language as the improvement standard; this was a general guideline that developed with increasing medical review of Medicare claims. Eventually, this standard was stated outright in claim denials for services such as therapy. The lack of progress was typically used to substantiate that the services were not medically necessary or worthwhile.

The Jimmo case particularly presented chronic and progressive diseases [such as Parkinson’s and MS] to demonstrate how therapy services would be beneficial even if the patient were not going to make great progress. It was argued that the benefit would come from maintaining or slowing the decline impacting quality of life.  The lawsuit is a great step forward for beneficiaries that have chronic conditions that slow or prevent substantial functional progress. Also, the removal of the improvement standard does not apply to a particular service, based on the ruling all skilled maintenance services cannot be denied automatically.

Since the Jimmo case was decided and the settlement finalized in January [2013]; many are wondering, what does this mean for beneficiaries and for providers alike? The announcement of the settlement indicates that the change to the law is effective immediately; however, CMS is stating it will take 6 months to change all manuals and other references to the improvement standard and another 6 months to provide training to the Medicare Administrative Contractors (MACs).

As this relates to Medicare and long term care questions abound, especially related to therapy services. The government, through Medicare Part B, has restricted therapy through a therapy cap system and then a second threshold of $3700 per therapy cap (PT/ST and OT) which will trigger a manual medical review (MMR). The MMR process for 2013 has yet to be revealed by CMS. Medicare Part A is undergoing scrutiny for the Ultra High RUG levels without emphasis on length of stay, though that certainly comes up in medical review.

Will lengths of stay get longer for Medicare Part A? Will Medicare Part B approve more therapy services when requested for skilled maintenance therapy services? Home health in particular is hoping they will be able to provide needed services that may have been denied in the past. How will Medicare beneficiaries and their families react?

The Centers for Medicare Advocacy [http://www.medicareadvocacy.org/take-action/self-help-packets-for-medicare-appeals/] has developed self help packets for beneficiaries so they can fight for their right to access to care. There is one for Outpatient Physical Therapy Denials and one for SNF Denials as well as Home Health. These packets are well done and provide great information; as such, you may have some beneficiaries or families that reach out to you with this information.

This important legal decision will help providers assist beneficiaries in receiving the care they need. There, of course, is a word of caution that this is most likely not an open door to all Medicare A beneficiaries getting 100 days approved no matter the condition. Nor will it lead to unlimited therapy under Med B. The standards of medical necessity, reasonableness of care and whether the services were inherently skilled or not still have to be met under medical review.

Example, a resident [in a SNF] with Parkinson’s has fallen recently so there is a referral to therapy to evaluate. The therapist will evaluate and provide services under a plan of care (approved by the physician) to treat. The treatment does not have to result in functional progress. The services still need to require the skills of a therapist and be medically necessary and reasonable given the resident’s condition. The end result? The resident will be evaluated and treated according to his/her individualized needs and ultimately more treatment may be available than we might have been able to reasonably provide under the scrutiny of medical review before the Jimmo case. The care, once established and routine in nature thus no longer skilled, would be taught to the nursing staff and added to the care plan. Periodically therapy can reassess the resident’s condition to assure there is no need to change the program. The question for discharge from therapy now will not be “have they stopped progressing?” but “are the services still skilled?” and “is the patient still benefitting from skilled maintenance services that only a therapists can provide?” Therapy will not be approved indefinitely for a Medicare Beneficiary just because they have a chronic underlying condition; however, it will allow beneficiaries who could not adequately access the full extent of their benefits to do so.

HTS will work with our customers, patients and families on a case by case basis to assure that all patients get the care they need to continue their quality of life to the best of our ability. Notices such as the ABN and Expedited Determination (NONMC) will continue to play a part in helping us determine what will be covered under Medicare regulations, especially during this time of transition.

I will continue to update our customers and therapy staff as information develops related to this issue. Feel free to contact me should you have questions and I will do my best to provide you an answer.

Yours,

Christine Kroll, MS, OTR

Director of Operations

Healthcare Therapy Services, Inc.