Harmony Healthcare Blog

Jimmo v. Sebelius: Updates for Skilled Nursing & Therapy Services

Posted by Kris Mastrangelo on Tue, Dec 16, 2014


Edited by Kris Mastrangelo

Jimmo vs Sebelius

Alice Bers, Esq., an attorney at the Center for Medicare Advocacy, Inc., and co-counsel for the plaintiffs in Jimmo v. Sebelius, a class action challenging Medicare’s improvement standard, provided attendees of the Harmony 2014 SNF Interdisciplinary Symposium with a recap of the litigation, settlement and recent updates.

To summarize, on January 18, 2011, a Federal Class Action lawsuit was filed by the Center for Medicare Advocacy challenging the inappropriately imposed “improvement standard” on Medicare beneficiaries by the fiscal intermediaries.

The plaintiffs included five individuals and six organizations including:

  • Alzheimer’s Association
  • National Multiple Sclerosis Society
  • National Committee to Preserve Social Security & Medicare
  • Paralyzed Veterans of America
  • Parkinson’s Action Network
  • United Cerebral Palsy

On January 24, 2013, a Federal judge approved a settlement in this case, effectively eliminating the longstanding practice by which Medicare claims processors decide nursing care and Therapy services are not available for beneficiaries whose condition is not “improving.”  The settlement clarified the language of the Medicare Benefit Policy Manual that coverage should not be determined by the presence or absence of potential for improvement, but rather on the patient’s need for skilled care to restore, maintain, prevent or slow deterioration so long as the beneficiary requires skilled care for services to be safe and effective.  The decisions are to be based on an individual’s unique condition & needs.

In July 2013, the Medicare Benefit Policy Manuals were updated to reflect the settlement decision.  The following paragraphs are excerpts from the updated manuals outlining the criteria for determination of skilled Therapy and Nursing services.  

Medicare Benefit Policy Manual Chapter 8

Skilled Nursing Facility Level of Care - General (Rev. 179, Issued: 01-14-14, Effective: 01-07-14, Implementation: 01-07-14) A3-3132, SNF-214

  • In reviewing claims for SNF services to determine whether the level of care requirements are met, the intermediary or Medicare Administrative Contractor (MAC) first considers whether a patient needs skilled care.
  • Nursing services are considered skilled when they are so inherently complex that they can be safely and effectively performed only by, or under the supervision of, a registered nurse or, when provided by regulation, a licensed practical (vocational) nurse.  If all other requirements for coverage under the SNF benefit are met, skilled nursing services are covered when an individualized assessment of the patient’s clinical condition demonstrates that the specialized judgment, knowledge, and skills of a registered nurse or, when provided by regulation, a licensed practical (vocational) nurse are necessary. 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, and all other requirements for coverage under the SNF benefit are met. Coverage does not turn on the presence or absence of an individual’s potential for improvement from nursing care, but rather on the beneficiary’s need for skilled care.

30.4 - Direct Skilled Therapy Services to Patients (Rev. 179, Issued: 01-14-14, Effective: 01-07-14, Implementation: 01-07-14) A3-3132.1.C, SNF-214.1.C

  • Coverage for such skilled therapy services does not turn on the presence or absence of a beneficiary’s potential for improvement from therapy services, but rather on the beneficiary’s need for skilled care. Therapy services are considered skilled when they are so inherently complex that they can be safely and effectively performed only by, or under the supervision of, a qualified therapist. (See 42CFR §409.32) These skilled services may be necessary to improve the patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.  If all other requirements for coverage under the SNF benefit are met, such 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 are necessary for the performance of the rehabilitation services.
  • E. Maintenance Therapy:
    Therapy services in connection with a maintenance program are considered skilled when they are so inherently complex that they can be safely and effectively performed only by, or under the supervision of, a qualified therapist. (See 42CFR §409.32) If all other requirements for coverage under the SNF benefit are met, 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 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.
    If a service can be self-administered or safely and effectively furnished by an unskilled person, without the direct supervision of a therapist, the service cannot be regarded as a skilled therapy service even when a therapist actually furnishes the service. Similarly, the unavailability of a competent person to provide a non-skilled service, regardless of the importance of the service to the patient, does not make it a skilled service when a therapist furnishes the service.

Medicare Benefit Policy Manual Chapter 15

220.1 - Conditions of Coverage and Payment for Outpatient Physical Therapy, Occupational Therapy, or Speech-Language Pathology Services (Rev. 165, Issued: 12-21-12, Effective: 01-01-13, Implementation: 01-07-13)

  • Skilled therapy services 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.  The services shall be of such a level of complexity and sophistication or the condition of the patient shall be such that the services required can be safely and effectively performed only by a therapist, or in the case of physical therapy and occupational therapy by or under the supervision of a therapist.  Medicare coverage does not turn on the presence or absence of a beneficiary’s potential for improvement from the therapy, but rather on the beneficiary’s need for skilled care.  While a beneficiary’s particular medical condition is a valid factor in deciding if skilled therapy services are needed, a beneficiary’s diagnosis or prognosis cannot be the sole factor in deciding that a service is or is not skilled. The key issue is whether the skills of a therapist are needed to treat the illness or injury, or whether the services can be carried out by non-skilled personnel.
  • Rehabilitative therapy may be needed, and improvement in a patient’s condition may occur, even when a chronic, progressive, degenerative, or terminal condition exists. For example, a terminally ill patient may begin to exhibit self-care, mobility, and/or safety dependence requiring skilled therapy services. The fact that full or partial recovery is not possible does not necessarily mean that skilled therapy is not needed to improve the patient’s condition or to maximize his/her functional abilities. The deciding factors are always whether the services are considered reasonable, effective treatments for the patient’s condition and require the skills of a therapist, or whether they can be safely and effectively carried out by nonskilled personnel 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 are necessary for the performance of safe and effective services in a maintenance program.

End of Life Care

The Jimmo settlement has had a profoundly positive effect on the provision of Therapy services for those patients with progressive deteriorating conditions.  Ms. Bers, with the Center for Medicare Advocacy, reminded the audience of clinicians that often skilled nursing is required for patients at the end of life for patients who have not elected Hospice.  Even if the patient may be “comfort measures only” they may sometimes require highly skilled services in regards to:

  • Pain and symptoms management with medication and other therapies.
  • Narcotics, often morphine, sometimes IV or PRN basis.
  • Anti-anxiety medication, oxygen to prevent air hunger.
  • Anticipating side effects, observe/assess patient’s response.

The requirement that must be clearly documented in the medical record is how the care and services must be so inherently complex that only the skills, knowledge and judgment of a nurse can safely and effectively provide it.

Managed Medicare Programs

Ms. Bers pointed out to the audience that Medicare replacement or Medicare Advantage Plans (MA) although they are technically private plans per the Managed Medicare Benefit Policy may offer more coverage than original Medicare, but not less and therefore must follow these clarified Manual provisions just as traditional Medicare.  

Medicare Managed Care Manual Chapter 4 - Benefits and Beneficiary Protections 10.2 - Basic Rule (Rev. 115, Issued: 08-23-13, Effective: 08-23-13, Implementation: 08-23-13)

  • An MA organization (MAO) offering an MA plan must provide enrollees in that plan with all Part A and Part B, Original Medicare services, if the enrollee is entitled to benefits under both parts.
  • The following requirements apply with respect to the rule that MAOs must cover the costs of Original Medicare benefits:
    • Benefits: MA plans must provide or pay for medically necessary Part A (for those entitled) and Part B covered items and services.
    • Access: MA enrollees must have access to all medically necessary Parts A and B services.

Claims Eligible for Re-Review

Ms. Bers noted that in addition to revising Medicare manual provisions to now allow Medicare coverage for skilled maintenance care, the Settlement Agreement in Jimmo v. Sebelius established a process of "re-review" for Medicare beneficiaries who received a denial of skilled nursing facility care, home health care, or outpatient Therapy services (Physical Therapy, Occupational Therapy, or Speech Therapy). 

Per the Center for Medicare Advocacy, the denial must have come from Medicare and must be for services that were actually received, but not paid for by Medicare. The Medicare denial must have become final and non-appealable after January 18, 2011 and before the end of the educational campaign (the end of 2013). The denial must be based on the improvement standard. The deadline for the final set of re-review claims is January 23, 2015.

The process is not automatic.  People who wish to take advantage of the re-review process must fill out and submit a form, known as a Request for Re-Review, which is available on the Center for Medicare Advocacy's website and the CMS website.  



 

The Center for Medicare Advocacy, Inc., established in 1986, is a national nonprofit, nonpartisan organization that provides education, advocacy and legal assistance to help older people and people with disabilities obtain fair access to Medicare and necessary health care. Providers should review their documentation processes for any patient that requires skilled care, not just those that may qualify for ongoing service under this settlement.  Therapy and Nursing documentation must clearly define the condition complexities as well as the skills, knowledge and judgment of the clinician.  Written support from the physician regarding how the patient continues to require daily skilled Therapy or Nursing services to prevent deterioration related to their specific medical conditions will help to support the need for a skilled maintenance program.

Ms. Bers ended her presentation with a recommendation that if a Medicare beneficiary’s Medicare coverage is denied related to the improvement standard, they should go through all levels of the appeals process. Self-help packets are available on the Centers for Medicare Advocacy's website at www.medicareadvocacy.org

Resources:

  • Medicare Advocacy www.medicareadvocacy.org
  • Medicare Benefit Policy Manual Chapter 3
  • Medicare Benefit Policy Manual Chapter 8

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Tags: Jimmo, Improvement Standard, medicare benefit policy

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