November 15, 2012

Pending Medicare Settlement Eases Rules for Home Health Care

In a proposed settlement of a nationwide class-action lawsuit, the Obama administration has agreed to scrap a decades-old practice that denied home health care, skilled nursing home stays, and outpatient therapy to Medicare beneficiaries if there was no expectation that the services would result in medical or functional improvement.

This proposed change could help people with chronic conditions like Parkinson's, Alzheimer's, multiple sclerosis, stroke, and injuries of the brain or spine. It also would provide relief for families and caregivers who are often stretched financially and personally to provide care.

Until now, the federal government had been following an informal "stability presumption" under which Medicare coverage for home health care was automatically denied for patients whose conditions were "stable" or deteriorating during the coverage period. A showing was required that the services would result in medical or functional improvement.

Neither the Medicare law nor regulations require beneficiaries to show a likelihood of improvement. But some provisions of the Medicare manual and guidelines used my Medicare contractors establish more restrictive standards under which coverage could be denied or terminated if the patient reaches a plateau or is not improving.

This practice resulted in denying coverage for degenerative diseases like Alzheimer's and Parkinson's.

Here's an example of the crazy results from this practice:



Legal Challenge 
Two years ago, a U.S. District Court in Burlington, Vt. ruled in the case of Anderson v. Sebelius that Medicare should pay for the home health services to prevent deterioration in a patient's condition even though there was no likelihood of medical or functional improvement.

The lawsuit was brought by Sandra Anderson, who had been receiving visiting nurse services at home since she suffered a stroke in 2004. But when she returned home after being hospitalized for a second stroke, the home care service was denied, using the stability presumption. She sued, claiming a violation of her Fifth Amendment due process rights.

The Vermont District Court Judge wrote:
A patient's chronic or stable condition does not provide a basis for automatically denying coverage for skilled services.... Skilled care may, depending on the unique condition of the patient, continue to be necessary for patients whose physical situation is stable.
A nationwide class-action lawsuit was brought to broaden the applicability of this ruling. Last month -- two years after the Vermont ruling -- a proposed settlement was negotiated with lawyers from the Justice Department and the Department of Health and Human Services. It has been submitted to Christina C. Reiss, the chief judge of the Federal District Court in Vermont, who is expected to approve it. She would then have authority to enforce it for up to four years.

Under the settlement,  federal officials agreed to rewrite the Medicare manual to make clear that Medicare coverage of nursing and therapy services "does not turn on the presence or absence of an individual's potential for improvement" but instead is based on the patient's need for skilled care.

Independent medical experts agree that the settlement will increase Medicare costs for the federal government. On the other hand, it could save money when, for example, the provision of home skilled care allows the patient to avoid more expensive hospital or nursing home care.

Moreover, physical therapy is subject to a cap each year. In 2012, that limit is $1,880 for both occupational and physical/speech therapy. Beneficiaries can request an exception to double this amount if they can show that the therapy will help "achieve prior functional status or maximum expected functional status within a reasonable amount to time."

The language in that exception wouldn't help me if the physical therapy was designed to address my degenerative Parkinson's disease. But it might apply if the therapy was designed to ease my back pain and get me back to where I was before the 2011 car crash and fractured vertebra.

Hmmm. The rules for when this exception is available sound much like the now-discredited stability practice with respect to home health care services.

Another law suit? Another two years of litigation? The lawyers win again.

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