Although not specifically stated in the Medicare law, the federal government for decades had adopted a "stability presumption" under which skilled care was automatically denied patients whose conditions were "stable" or deteriorating during the coverage period. Under that interpretation of the law, skilled services were covered by Medicare only if it could be shown that they would result in medical or functional improvement. Many patients, like me with Parkinson's, have long-term or debilitating conditions for which improvement isn't possible, although skilled care might prevent further deterioration or at least slow it down.
Six individuals and seven organizations (including the Parkinson's Action Network) filed a lawsuit challenging this informal policy guideline in the federal district court in Vermont. Last October, the parties filed a settlement agreement with the court, and on January 24, 2013, the court approved the settlement agreement.
This spring I talked with my physical therapist about the current status of this policy. She said it was still unclear whether Medicare contractors were honoring the policies set forth in the settlement. The Center for Medicare Services has not yet completed the revisions required by the settlement, though it must by January 24, 2014. It recently provided a fact sheet detailing the new policies required by the settlement.
New Policy Guidelines
Patients, caregivers, doctors, and medical care providers will want to review the new guidelines carefully. Here are some of the major features:
- The settlement applies to Medicare Parts A and B. The agreement specifically covers physical therapy, occupational therapy, and speech therapy. Physical and speech therapies are particularly important for those of us with Parkinson's.
- The settlement applies to Medicare managed care (Medicare Advantage) as well as traditional Medicare.
- It applies to anyone who requires skilled services to maintain or slow deterioration regardless of the underlying illness, disability, or injury.
- It applies to skilled services provided at home, in a nursing home, or when the individual receives care as an outpatient.
- If the patient meets the other Medicare home health qualifying criteria, the settlement makes it clear that "maintenance" therapy -- physical, speech, or occupational -- can be covered under the home health benefit.
- Medicare provides up to 100 days of coverage in a nursing home. The settlement does not increase those coverage days.
- Under current law (not affected by the settlement), there's an annual cap of $1,900 for the combined cost of physical and speech therapies. (Many Parkinson's patients need both.) But an exception may be requested to double that amount for services deemed medically necessary. As a result of the settlement, a patient now can ask his doctor to order the continued therapy as needed to maintain his current condition or slow deterioration.
- If a patient earlier had skilled services stopped because of the now-discarded Improvement Standard, the doctor could prescribe the skilled nursing or therapy again, explaining carefully in writing why the services are needed to maintain the patient's condition or slow deterioration.
- The settlement is retroactive to the date the class action was filed -- January 18, 2011.
Some experts fear that medical costs will rise dramatically because of the settlement. Others believe the change will save money in the long run. They argue that when patients receive medically necessary nursing and therapy services that enable them to maintain their functioning or retard its decline, many of them can stay at home and avoid expensive hospitalization or nursing home care.