CENTER FOR MEDICARE ADVOCACY, INC.
The Medicare Improvement Standard:
Limiting Fair Access To Coverage & Care
________________
National Medicare Advocates Alliance
April 11, 2011
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MEDICARE LAW
 Coverage must be … “reasonable and
necessary for diagnosis or treatment of illness
or injury or to improve a malformed body
member” 42 USC §1395y(a)(1)(A)
• Note: The law refers to improvement only about
“malformed body member”
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COUNTERING IMPROVEMENT MYTH
 “Rules of thumb” cannot be used to deny
coverage including:
• Lack of Restoration potential
• 42 CFR §409.32(c); 42 CFR §409.44(b) - Nursing
• 42 CFR §409.44(c)(2)(iii)(B) and (C) - Therapy
• 75 Federal Register 70395 (11/17/2011) - Preamble to new
therapy home health regulations
• Condition is chronic, terminal, or expected to
last long time
• 42 CFR §409.44(b)(3)(iii)
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“MAINTENANCE ONLY”
 Restoration potential is not a valid reason
for denial of skilled nursing coverage:
• “Even if full recovery or medical improvement
is not possible, a patient may need skilled
services to prevent further deterioration or
preserve current capabilities.”
42 CFR §409.32(c)
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MAINTENANCE ONLY (Cont.)
New Federal Regulations
 “ ‘Rules of thumb’ in the Medicare medical review process are
prohibited. … Any ‘rules of thumb’ that would declare a claim
not covered solely on the basis of elements, such as lack of
restoration potential, … or degree of stability, is unacceptable
without individual review of all pertinent facts… .”
• Preamble at 75 FR 70395 (11/17/2010)
 Maintenance therapy explicitly identified as a covered
benefit under home health care:
•
Newly revised 42 CFR 409.44(c)
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“CHRONIC AND STABLE”
 Not valid reason to deny coverage:
“The determination of whether skilled nursing care is
reasonable and necessary must be based solely upon
the beneficiary’s unique condition and individual
needs, without regard to whether the illness or injury is
acute, chronic, terminal, or expected to last a long
time.”
42 CFR §409.44(b)(3)(iii)
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EXAMPLES: MISAPPLICATION OF LAW
 QIO: “No, coverage is never available if the
beneficiary is stable. …”
 ALJ: Individual with MS for 35 years not entitled
to coverage for PT as it was “repetitive and
preventive”
 HH agency: SC beneficiary received written notice
– “Medicare is never available for maintenance
therapy.”
 Outpatient PT providers won’t bill for maintenance
PT or seek an exception above the annual cap
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MRS. B
 80 years old
 Multiple Sclerosis
 Frequent UTIs; rigidity,
contractures, pain
 Physical Therapy
 Client since 1987
 Now Bedbound
 Multiple HH appeals
Most recently April 2011
 Unskilled aides broke
client’s arm doing ROM
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MRS. P





ALS
Diabetes
“Stable & Chronic”
No skilled care needed
Medicare Advantage
Issues
 Fed Court: 8/2008
 Stayed at home until
moved to SNF 10/2010
 Died 12/2010
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IMPORTANT COURT CASES
Fox v. Thompson, 656 F.Supp. 1236 (D.Conn 1987; 2002)*
 Medicare decisions must not be based on “rules of
thumb”
 Coverage decisions about skilled nursing must be
based solely upon beneficiary’s unique condition &
individual needs …
 Without regard to whether the illness or injury is
acute, chronic, terminal, or expected to last a long
time
________
*Center for Medicare Advocacy’s case. Connecticut Class Action.
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McDonald v. Shalala,
855 F. Supp. 658 (D.VT., 1994)
 The fact that skilled care has stabilized a
claimant’s health does not render that level
of care unnecessary: an elderly claimant
need not risk a deterioration of his fragile
health to validate the continuing requirement
for skilled care.
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McDonald v. Shalala,
855 F.Supp. 658 (D.Vt., 1994)
 Citing the CMS manual (now MBPM 100-02,
Ch 7, §40.1.1) in granting coverage for home
health services :
• “the fact that [the beneficiary] did not experience the
complications sought to be avoided by the type of care
described in [42 CFR]409.33(a)(1) - (2) does not mean
that those services were not reasonably expected to be
appropriate treatment throughout the certification
period, and thus reasonable and necessary. To hold
otherwise would be illogical.”
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RECENT INDIVIDUAL FEDERAL
COURT DECISIONS
 Anderson v. Sebelius, 2010 WL 4273238 (D.VT
2010)
•
Home Health Care – “skilled care may …continue to be
necessary for patients whose condition is stable” (p. 6)
 Papciak v. Sebelius, 742 F.Supp.2d 765,
(W.D.PA 2010)
• Skilled Nursing Facility – Restoration potential not
required to warrant skilled care and coverage (p. 770)
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NEED FOR CLASS ACTION LAW SUIT
 Negotiations with CMS, HHS, WH
•
•
Efforts to get new CMS Ruling eliminating Improvement Standard in all its guises
Joint Education Effort
 Individual Cases insufficient to affect change
• Most people do not appeal
• Not binding on next case (or even for same beneficiary)
 Goals for Class Action: Ruling prohibiting denials on
basis of Improvement Standard
• Remove all contrary language from CMS policy
• Add affirmative statement to CMS policy and regs where needed
• Education effort with Medicare contractors and providers
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Jimmo vs. Sebelius, Civil No. 5:11-CV-17
(D. VT. 1/18/2011)
 Federal Class Action lawsuit to eliminate Improvement Standard
 Filed 1/18/11 federal district court; amended 3/3/11
 Plaintiffs: 5 individuals and 7 organizations
• National MS Society
• Paralyzed Veterans of America
• Parkinson’s Action Network
• National Committee to Preserve Social Security and Medicare
• American Academy of Physical Medicine and Rehabilitation
• Alzheimer’s Disease Association
• United Cerebral Palsy
 HHS response due April 11th
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REGS & CMS POLICY RECAP
and Q&A
 Maintenance therapy can be covered
•
Restoration potential is not the deciding factor
•
•
42 CFR §409.32(c)
75 FR 70395 (11/17/2010)
•
42 CFR 409.44(c)(2)(iii)(C)
• Including the actual carrying out of maintenance programs
 Skilled care can be needed to prevent deterioration
or preserve capabilities
•
42 CFR §409.32(c)
• SNF Manual: 100-02, Ch. 8, §30.2.2
• HH Manual: 100-02, Ch. 7, §40.1.1-4 Ex. 2
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CENTER FOR MEDICARE ADVOCACY
CT: (860) 456-7790 • (800) 262-4414
DC: (202) 293-5760
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