Earlier this year, chronically ill persons who had had their Medicare benefits discontinued because they were told that they were not improving filed a lawsuit in Vermont federal court Jimmo, et al vs. Sebelius, 5:11-CV-17, (D. VT., January 18, 2011).
Historically, Medicare providers and CMS have applied what has been coined “the improvement standard” which provides that if a patient reaches a plateau in therapy or is no longer improving that benefits would be discontinued. However, despite a pervasive belief to the contrary, nowhere in the Medicare statutes or regulations does the “improvement standard” exist.
On October 25, 2011 the federal court in Vermont denied the government’s Motion to Dismiss the complaint. This denial is a victory for the chronically ill patient and is a step in getting the improper application of the law curtailed.
This lawsuit is of particular concern to those suffering from debilitating diseases such as MS, Lou Gehrig’s disease and Parkinson’s. A person with these types of diseases may greatly benefit from physical therapy, but is unlikely to significantly improve. However, these persons may need therapy to keep their conditions from deteriorating.
Many people (including those applying Medicare standards) erroneously believe that Medicare coverage is not available for beneficiaries who have an underlying condition from which they will not improve. “Improvement” is only mentioned once in the Medicare Act – and it is not about coverage for home health care. The Medicare Act states that no payment will be made except for items and services that are “reasonable and necessary for the diagnosis or treatment of an illness or injury, or to improve the functioning of a malformed body member.” 42 USC §1395y(a)(1)(A). While “malformed body member” is not defined, this language in no way limits Medicare coverage only to services, diagnoses or treatments that will improve illness or injury. However, beneficiaries are often denied coverage on the grounds that they are not likely to improve, or are “stable” or “chronic,” or require long-term care, or “maintenance services only.”
Medicare coverage can be available for long term home health care if the qualifying criteria are met. There is no statutory or regulatory limit on the length of time for which home health coverage is available. Further, Medicare covers home health services in full, with no required deductible or copayments from the beneficiary. Services must be reasonable and medically necessary and the following triggering conditions are met:
- A physician has signed or will sign a plan of care
The patient is or will be “homebound.” This criterion is met if leaving home requires a considerable and taxing effort which may be shown by the patient needing personal assistance, or the help of a wheelchair or crutches, etc. Occasional but infrequent “walks around the block” are allowable.
- The patient needs or will need physical or speech therapy, or intermittent skilled nursing (from once a day for periods of 21 days at a time if there is a predictable end to the need for daily nursing care, to once every 60 days).
- The home health care is provided by, or under arrangement with, a Medicare-certified Provider.
If the triggering conditions described above are met, the beneficiary is entitled to Medicare coverage for home health services. Home health services include:
- Part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse, physical, occupational, or speech therapy
- Medical social services under the direction of a physician; and to the extent permitted in regulations, part-time or intermittent services of a home health aide.
Unfortunately, Medicare coverage is often denied to individuals who should qualify for home care under the law. Beneficiaries are often denied coverage because they have certain chronic conditions such as Alzheimer’s disease, Parkinson’s disease, and multiple sclerosis, or because they need nursing or therapy “only” to maintain their condition. These are not legitimate reasons for Medicare denials.
Each person should get an individualized assessment regarding Medicare coverage based on his/her unique medical condition and need for care.There is no legal limit to the duration of the Medicare home health benefit. Medicare coverage is available for necessary home care even if it is expected to last a long period of time. The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Coverage can be available even if the illness or injury is chronic, terminal, or the patient’s condition is stable.Medicare recognizes that skilled care can be required to maintain an individual’s condition or functioning, or to slow or prevent deterioration, including physical therapy to maintain the individual’s condition or function.
Medicare coverage for home health care can be a long-term benefit if the individual meets the qualifying criteria. Unfortunately, however, coverage is often erroneously denied for individuals with chronic conditions, for people who are not improving, who need services for a long time and/or to maintain their condition. Medicare home care under these situations will not provide around the clock care or supervision. However, it can provide therapy, intermittent services of a home health aide and social services.