MARYLAND AAHAM - The MYTH of the Medicare “Improvement Standard” for Skilled Services: How to Use the “Jimmo Settlement” to Your Advantage Catherine (Kate) H. Clark, CPC, CRCE-I Kohler HealthCare Consulting, Inc

Today’s Objectives Describe background and outcome of the Jimmo Settlement Correct the widespread misperception of the Medicare “Improvement Standard” Discuss the Court’s decision and the effect on care Clarify settings where skilled services covered by Medicare Review CMS answers to Frequently Asked Questions (FAQs) about medical necessity in: home care, outpatient therapy and SNF Identify CMS resources and facts to support reversal of denials 2

The MYTH’s Backstory… For years, Medicare beneficiaries have been told they must show progress towards goals – Therapists have to set goals based on this – Therapists have to document treatment in relationship to these goals THE MYTH: “No progress equals no Medicare coverage -- unless the problem got worse, in which case the treatment could resume.” 3

TRUTH: Jimmo v. Sebelius Case This frustrating Catch-22 spurred a class-action lawsuit against Health and Human Services Secretary Kathleen Sebelius. A fairness hearing, brought by six (6) individual beneficiaries and seven (7) national organizations representing people with chronic conditions, to challenge the use of the rule of thumb “Improvement Standard”: UNITED STATES DISTRICT COURT for the DISTRICT OF VERMONT : GLENDA JlMMO v. KATHLEEN SEBELIUS TRUTH: January 2013, a federal judge approved a settlement in which the government agreed that "improvement standard" is not necessary to receive coverage. 4

How Did We Get Here? For years, both providers and Medicare beneficiaries have operated under the incorrect assumption that Medicare will only pay for rehab therapy or other skilled care if a patient shows improvement towards treatment goals as a result of that care. Requirements: Designation of Skilled Services and Medical Necessity The Jimmo agreement settles once and for all that Medicare coverage is available for skilled services to maintain an individual’s condition or prevent or slow their decline. 5

Medicare Improvement Standard Inappropriate denials by contractors based on a rule-of- thumb “Improvement Standard” – claim would be denied due to a beneficiary’s lack of restoration potential and progress towards goals Denial even when the beneficiary required a medically necessary level of skilled care in order to prevent or slow further deterioration in his or her clinical condition (e.g. Parkinsons) Medicare statute and regulations have never supported the imposition of an “improvement standard.” In the Jimmo lawsuit, CMS denied establishing an improper rule-of-thumb “Improvement Standard.” 6

The Court’s Decision and Effect on Care  A clarification of coverage, not an expansion of coverage  Applies to all three care settings: Medicare home health Outpatient therapy Skilled nursing facility benefits up to (not in addition to) 100 days of coverage per benefit period.  Applies to beneficiaries who clearly need skilled care and are not able to access because they could not document or support the improvement of the condition or restoration of function. 7

The Court’s Decision and Effect on Care  Settlement took effect immediately for traditional Medicare A/B and private Medicare Advantage plans. Settlement took effect immediately  Coverage allowed regardless of the underlying illness, disability or injury.  Coverage not limited to certain conditions/diseases  Coverage is based on documented need for skilled services 8

The Court’s Decision Effect on Care  Medicare is working to implement the terms of the settlement and ensure that beneficiaries have access to the full range of services they are entitled to under the law  Documentation  Electronic Medical Records – templates, patient charging, patient process flow  Denials  Appeals 9

A Medicare Fact Sheet has been Issued…It States: Medicare policy has long recognized that there may also be specific instances where no improvement is expected but skilled care is, nevertheless, required in order to prevent or slow deterioration and maintain a beneficiary at the maximum practicable level of function. Beneficiaries will receive the care to which they are entitled CMS to revise relevant program manuals used by Medicare contractors. CMS will complete the manual revisions and educational campaign by January 23, See: Payment/SNFPPS/Downloads/Jimmo-FactSheet.pdfhttp:// Payment/SNFPPS/Downloads/Jimmo-FactSheet.pdf 10

FAQs and CMS Clarification: Q: Can the Jimmo Settlement Agreement help now? Yes. The Settlement Agreement standards for Medicare coverage of skilled maintenance services apply now. The government insists it is only clarifying what has always been the Medicare coverage standard. The Settlement does not change Medicare laws or regulations. The law never supported the requirement that people improve in order to support a covered service. Accordingly, health care providers should implement the maintenance standard now. 11

FAQs and CMS Clarification: Q. How does the settlement affect outpatient physical, occupational and speech therapy? Medicare covers home health, nursing home or outpatient therapy (professional or facility) to maintain the patient's condition and prevent decline. Coverage does not depend upon the "potential for improvement from the therapy but rather on the beneficiary's need for skilled care." What is still applies? – Provider Order supporting medical necessity – Provider scope of practice – Therapy Caps - $1,900 PT and SLP, another $1,900 OT – Provider “G” codes and functional therapy modifiers (when applicable) 12

FAQs and CMS Clarification, cont’d : Q. How does the settlement affect outpatient physical, occupational and speech therapy (continued)? Therapy Cap - KX modifier allows providers to request additional care reimbursement for outpatient. Must document ongoing need for skilled care beyond payment limit (Home Health excluded) Home Health excluded from pay limits Coverage standards clarified in this ruling do not apply to inpatient rehabilitation facilities (IRFs) or comprehensive outpatient rehabilitation facilities (CORFs). 13

FAQs and CMS Clarification: Q. Is home health care affected? Yes. Home Care services include therapy, mental health counseling and nursing care. Medicare Eligibility Requirements: – Homebound status although not necessarily confined to bed. – Skilled nursing services or under the supervision of skilled personnel are covered including administering intravenous drugs and wound care. – Skilled PT, OT, SLP, SW services or therapy under the supervision of skilled personnel – No time limit for home care if the amount of skilled care is reasonable and not given daily, is provided by a trained professional and treatment is medically necessary. – Medicare pays for part-time home health aides to provide assistance with dressing, eating and other daily living activities, but only for patients who also receive skilled care at home. 14

FAQs and CMS Clarification: Q. So, specifically… the Jimmo Settlement allows people to get coverage for Rehab Services at home? Yes. Physical therapy, speech and occupational therapies are covered service under the Medicare home health benefit. If the individual meets the other Medicare home health qualifying criteria, the Jimmo Settlement makes it clear that "maintenance therapy” can be covered under the home health benefit if a qualified therapist is required to ensure the care is safe and effective. 15

FAQs and CMS Clarification: Q. What does the agreement say about Nursing Home coverage? Skilled nursing services are covered when "necessary to maintain the patient's current condition or prevent or slow further deterioration." Nursing services or therapy must be based on a patient's clinical condition and be provided by a registered nurse, licensed practical nurse or therapist. Beneficiaries qualify only after having spent at least three days in the hospital as an inpatient. (Observation stays do not count.) Medicare will cover up to 100 days in a nursing home per "benefit period," which starts when a beneficiary enters the hospital or a nursing home for skilled care and ends 60 days after the skilled care has been discontinued. Even if nursing home residents do not qualify for Medicare coverage of their stay in the facility, Medicare still may cover rehab therapy services for residents who meet the requirements for outpatient therapy. 16

FAQs and CMS Clarification: Q. What about nursing home residents in long-term care who have used up their 100 days and pay out of their own pockets? Seniors can still get skilled care even if they are not improving and have used up their 100 days of nursing home coverage. Even if residents do not qualify for Medicare for their stay in the nursing home, Medicare may cover physical therapy and other skilled care for those who meet the requirements for outpatient therapy. The $1,900 outpatient therapy caps would also apply. 17

FAQs and CMS Clarification: Q. What if skilled care was already stopped because of the Improvement Standard and the patient is no longer receiving services? If skilled services stopped because of the Improvement Standard and the physician thinks the services are needed, ask her to prescribe the skilled nursing or therapy again. Prescription should explain in writing why skilled nursing or therapy is required: How will you benefit? Will the services help maintain current condition or prevent or slow deterioration? Remember: all other Medicare requirements must still be met. For example, skilled therapy in a nursing facility could be re-prescribed and the 3-day hospital stay that is required for coverage must also be met again. The homebound requirement still applies for Medicare coverage of home health care, and the annual dollar cap applies for outpatient therapies. 18

FAQs and CMS Clarification: Q. Is the Jimmo Settlement Retroactive? Will Medicare reimburse people who were denied coverage due to a lack of improvement? Yes. A special review process will be set up for patients whose claims were denied after the lawsuit was filed on Jan. 18, The Settlement Agreement establishes a process called "re-review" for Medicare beneficiaries who received a denial of skilled nursing facility care, home health care, or outpatient. After the government completes the revision of its policy and guidelines, and educates Medicare decision-makers, individuals will be able to get a re-review of these claims. RETRO re-review to January 18,

CMS’s Free Self-Help Packets Explains how to challenge a denial of coverage Reassures providers that Medicare will pay for maintenance care even if Medicare has not yet sent out an official notice. Facilities can use Self-Help Packets to help understand proper coverage rules and contest a Medicare denial for outpatient, home health, or skilled nursing facility care. Key sections of the Agreement are highlighted on the Center’s website; 20

Remember …Documentation is Always the Hallmark of Good Practice Accurate, Detailed Plan of Care /Goals to describe goal of prevention or decline Skilled medical necessity language Supervision of assistive personnel Timely (time lags should be justified) Objectively state maintenance of condition intervals 21

Thank You for Your Time Today! 22 What questions do you have?

References “FAQ: Medicare Beneficiaries May See Increased Access To Physical Therapy Or Some Other Services,” Susan Jaffe, The Washington Post June 2013 Jimmo v. Sebelius Settlement Agreement Fact Sheet,U. S. District Court for the District of Vermont, January Payment/SNFPPS/Downloads/Jimmo-FactSheet.pdf Payment/SNFPPS/Downloads/Jimmo-FactSheet.pdf Self Help Packet: Improvement Standard and JimmoImprovement Standard and Jimmo News, Center for Medicare Advocacy Medicare to End 'Improve or You're Out' Standard for Coverage of Skilled Services, Elder Law Answers 23