1. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 1 CENTER FOR MEDICARE ADVOCACY, INC. The Medicare Improvement Standard: Limiting Fair Access To Coverage & Care ________________ National Medicare Advocates Alliance April 11, 2011 www.medicareadvocacy.org

2. Copyright © Center for Medicare Advocacy, Inc. 2 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”

3. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 3 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)

4. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 4 “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)

5. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 5 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)

6. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 6 “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)

7. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 7 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

8. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 8 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

9. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 9 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

10. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 10 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.

11. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 11 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.

12. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 12 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.”

13. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 13 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)

14. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 14 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

15. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 15 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 11 th

16. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 16 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) Including the actual carrying out of maintenance programs 42 CFR 409.44(c)(2)(iii)(C)  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

17. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 17 CENTER FOR MEDICARE ADVOCACY CT: (860) 456-7790 (800) 262-4414 DC: (202) 293-5760 _______________ www.medicareadvocacy.org