PRESENTATION. The Myth of Improvement

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1 CENTER FOR MEDICARE ADVOCACY, INC. THE MEDICARE IMPROVEMENT STANDARD IMPLEMENTING THE JIMMO SETTLEMENT American Health Lawyers Association Institute on Medicare & Medicaid Payment Issues Baltimore, MD March 21, 2013 David Lipschutz 1 PRESENTATION The Myth of Improvement Background leading to Jimmo Jimmo v. Sebelius update Practical Implications for Skilled Nursing Facilities (SNFs), Home Health and Outpatient Therapies Questions & Answers 2 1

2 THE IMPROVEMENT MYTH Longstanding practice whereby CMS, claims processors, and providers decide nursing care and therapy services are not available for beneficiaries whose condition is not improving Examples: stable, chronic, plateaued Several favorable federal court cases over the years all individual Gov t never appealed, so no binding precedent at Circuit Court level 3 Jimmo vs. Sebelius, Civil No. 5:11-CV-17 (D. VT. 1/18/2011) Federal Class Action filed 1/18/2011 to eliminate Improvement Standard Plaintiffs: 5 individuals and 6 organizations Alzheimer s Association National MS Society National Committee to Preserve Social Security & Medicare Paralyzed Veterans of America Parkinson s Action Network United Cerebral Palsy Settlement Agreement reached with govt attys on 10/16/2012 Federal judge approved Settlement and certified nationwide Class at Fairness Hearing on 1/24/

3 What Jimmo Settlement Means: No Denials Based On Improvement Standard Coverage does not turn on the presence or absence of potential for improvement but rather on the need for skilled care Services can be skilled and covered when: Services are needed to maintain, prevent, or slow deterioration So long as the beneficiary requires skilled care for services to be safe and effective Jimmo Settlement, IX.6 and IX.7 5 Jimmo Clarifies Proper Standard Is skilled professional needed to ensure nursing or therapy is safe and effective? Is a qualified nurse or therapist needed to provide or supervise the care? Regardless of whether the skilled care is to improve, maintain, or slow deterioration. 6 3

4 NO USE OF RULES OF THUMB Should not be used to deny coverage including: Lack of Restoration Potential 42 CFR (c); 42 CFR (b) - Nursing 42 CFR (c)(2)(iii)(B) and (C) - Maintenance Therapy See also comments in 75 Federal Register Condition is chronic, terminal, or expected to last long time 42 CFR (b)(3)(iii) 7 INDIVIDUAL ASSESSMENT REQUIRED Do not assume Medicare is unavailable based on: Rules of Thumb Particular diagnosis Lack of restoration potential Treatment norms Base decision on individual s unique condition & needs The unique clinical condition of a patient may require the specialized skills of a qualified therapist to perform a safe and effective maintenance program. 42 CFR (c)(2)(iii)(C) 8 4

5 What Jimmo Settlement Means: Revision of CMS Manuals See CMA website for Jimmo Settlement info: CMS to revise Medicare policy manuals, guidelines, and instructions for SNF, HH & Outpatient (OPT) Therapies (PT, ST, OT) Clarify skilled maintenance therapies and nursing are covered by Medicare Eliminate conflicting CMS policies 9 What Jimmo Settlement Means: CMS Educational Campaign Within 1 year of Order: All policy revisions completed, CMS Educational Campaign completed Explain Settlement and new policies to: Providers, Medicare Contractors, Medicare Adjudicators, Patients, Caregivers CMS Website, National Calls, Open Door Forums, written materials & trainings Policy revisions and Ed. Campaign: Review/Input from Ctr Medicare Advocacy & Vt Legal Aid 10 5

6 What Jimmo Settlement Means: Accountability and Reviews CMS to review random samples of QIC decisions & address errors raised in reviews Meet regularly with Plaintiffs counsel to correct errors in individual cases Individuals only may request Re-review of Medicare s decisions final after 1/18/2011 For denials based on Improvement Standard Not required to exhaust all levels of appeal (denial on MSN sufficient) Court retains jurisdiction 11 BIGGEST OBSTACLE TO IMPLEMENTATION NOW CMS has not issued a statement Some providers, adjudicators, reviewers say they will not change practice until they hear directly from CMS Under Jimmo Settlement, CMS may issue a CMS Ruling (late Summer or Fall 2013) 12 6

7 Jimmo vs. Sebelius, Civil No. 5:11-CV-17 (D. VT. 1/18/2011) (Cont d) CMS statement about Jimmo on January 28, 2013: We are working to implement the terms of the settlement and ensure that beneficiaries have access to the full range of services that they are entitled to under the law. The settlement will clarify existing policy that claims should not be denied solely based on a rule-of-thumb determination that a beneficiary's condition is not improving." From CMS spokesman Brian Cook in an message to Congressional Quarterly 13 Jimmo vs. Sebelius, Civil No. 5:11-CV-17 (D. VT. 1/18/2011) (Cont d) U.S. Dept. of Health and Human Services (HHS): Under this settlement, Medicare policy will be clarified to ensure that claims from providers are reimbursed consistently and appropriately and not denied solely based on a rule-of-thumb determination that a beneficiary s condition is not improving. By Fabien Levy, spokesman for the U. S. Dept. of Health and Human Services (quote from The New York Times at:

8 Jimmo vs. Sebelius Effects of Jimmo Settlement in Various Care Settings Next Steps 15 SKILLED NURSING FACILITY STILL NEED TO MEET SNF COVERAGE CRITERIA 3 Day prior hospital stay (sometimes waived by Medicare Advantage Plans) Daily skilled care required to qualify for Medicare coverage: 5 days/week therapy (PT, OT, ST) or 7 days/week nursing or nursing and therapy combined So What is considered skilled? 16 8

9 WHAT IS SKILLED CARE? so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel. 42 CFR (a) 17 HOME HEALTH COVERAGE 42 USC 1395x(m) Services must be ordered by a physician Under a written plan of care Beneficiary must be confined to home (homebound) does not mean bedbound! Beneficiary must require skilled services No duration of time limitation No Co-Payments 18 9

10 HOME HEALTH COVERAGE 42 CFR et seq Skilled care requirement: Intermittent skilled nursing services As little as 1 x / 60 days (recurring) or daily for predictable period of time or Skilled PT or ST services and, in some circumstances, OT services 19 HOME HEALTH (Cont.) Added Benefit of Skilled Services Medicare Coverage of Other Home Health Services: If Medicare covers Skilled Nursing or PT, ST, or continuing OT, then Coverage also available for dependent services Home health aides Social worker, supplies 20 10

11 OUTPATIENT THERAPIES MEDICARE PART B Yearly dollar payment cap, indexed annually ($1,900 / year 2013) PT and ST services ($1,900 combined) Separate annual cap for OT services ($1,900 OT alone) Can seek Exception to caps Caps now apply to therapy services received in hospital outpatient department 21 MEDICARE PART C (Medicare Advantage Plans (MA Plans)) Private Medicare plans Provisions for delivery systems, not coverage Coverage criteria required to be the same as those in original Medicare May offer more coverage than original Medicare, but not less 22 11

12 What to Do if Medicare Coverage Denied After Jimmo? Use Jimmo Settlement and CMA self-help packets to educate provider & continue services Dr. is best ally to order care & keep services in place If denied Medicare coverage: Appeal, Appeal, Appeal Expedited Appeal See instructions in Notice provided If denied at first level, appeal again for Reconsideration Strict time limits, but just a phone call from patient or caregiver Medical provider will forward medical records for review Standard Appeal continue & request ALJ hearing 23 SUMMARY Restoration potential is not the deciding factor Medicare should not be denied at any care level because the beneficiary has a chronic condition or needs services to maintain his/her condition Individualized assessments are required Rules of thumb should not be used to determine access to coverage or care 24 12

13 FOR MORE INFORMATION, CMA WEBINAR ON JIMMO April 10, 2013, 2:00 p.m. Eastern DST, ducts-services/web-seminars/ See CMA website for Jimmo updates: 25 CENTER FOR MEDICARE ADVOCACY CT: (860) DC: (202)