[NYAPRS Enews] OM: A Sea Change In Medicare Policy For Chronic Conditions

Fri Nov 2 08:10:36 EDT 2012

A Sea Change In Medicare Policy For Chronic Conditions

By Monica E. Oss CEO  Open Minds  November 1, 2012

What a difference a few words can make. The October 16 settlement by the
Center for Medicare & Medicaid Services (CMS) on the Jimmo v. Sebelius
case (see Advocacy Groups Sue Medicare Over Continuing Denial of
Services Due to "Demonstrable Improvement" Requirement
<http://r20.rs6.net/tn.jsp?e=001MEnn42U3KItAfudrrrUcSIJ2Cmk89llF6pZOug9c
qWY_iiUafj5b4WCoEhIZ98i8I4bCMEV58FEIXrQIgTRF2qHYFrS7em9HT-4btK_VhH8Io9io
RnpzLtqrgPL8u22ATzBWGFC0pLO4I_4oHTvEupBLjDQFYF-Ij-DASoo1sTeUsizNIwWccYY0
2xRH5Rkk>  premium members) is a slight change in definitions - with
huge implications for consumers with chronic conditions.

The Jimmo v. Sebelius case was a class action lawsuit that challenged
the Medicare policy of denying coverage based on the "Improvement
Standard", meaning that patients had to show medical or functional
improvement- or the potential for that improvement-before Medicare would
pay for a specific service. 

The new settlement negates this "Improvement Standard" policy. The
Center for Medicare Advocacy, Inc. reports that, following a federal
judge's approval of the settlement, "CMS will revise the Medicare
Benefit Policy Manual and other Medicare Manuals to correct suggestions
that Medicare coverage is dependent on a beneficiary 'improving'." 

What does this mean for consumers? It will be easier to get services if
you have a condition that may not "improve" but will be "maintained" by
those services. This will affect some outpatient therapies, physical
therapy, occupational therapy, speech-language pathology services, home
care, and some skilled nursing home stays. 

The scale of the effect of this change in policy is not yet clear. The
New York Times coverage, Settlement Eases Rules for Some Medicare
Patients
<http://r20.rs6.net/tn.jsp?e=001MEnn42U3KItT47zBYJBEVvAlVXsYUnlklqIaW5Eb
Z8l9-q4VWJ0uGhgVyfLdOgdiKPAHJ30-oH5JxGgvNZ8KbpTylBE1_FdyQeWy3D04i0y_VnIi
R1SN835wNxarwCYFaxlBDt2bwsGNUsBcQNhRKzh5qtUXFZtctD4iGi9vR75jIg1MqV8x6Iuj
5IKkiUZcLezWInkGrg2yOk-EoDx66sDKhhkXzMc5l_BJTxDn3MzP_nyzZ0KBxJi93ePHVkOA
12lfiAerkfhxM8cu0Fl9eID2yI3h7hFk-eUASDlGu4mJOn_tm665Yg==> , has reported
that the numbers of patients affected could be "tens of thousands." Some
of the conditions likely affected by this policy change services include
dementias including Alzheimer's disease, multiple sclerosis, Parkinson's
Disease, stroke, spinal cord injuries, and traumatic brain injury. But
the ruling may be far more expansive. Additional The New York Times
coverage - What Medicare Will Cover Even if You're Not Likely to Get
Better
<http://r20.rs6.net/tn.jsp?e=001MEnn42U3KItarFzn28_JEee_oYoJbmVF_toJP2HV
HnCwnUMCnXMBDYQNDfNaN09lQZbjFrxPNk22jHGPI6RlTfdlqSi-4nP1DUpueZGtf5bhQcQJ
Z7Y_vhgL-60lA4x5dp6eCcG9oxM44taVOhA9OfvC_sI8KQixjbtkqWWtwMI-E4sr5XdNAYAg
9Jmhgh4JjDAW__IkLmzc2vo1MIHf55CpkyOgzLsRM713lpf8E3tA_4EoZGZu_S0NbPj5tjsl
_jlfwz0jzzrg5D8hbG4l-Q==>  - quotes Peter Thomas, outside counsel for
the American Academy of Physical Medicine and Rehabilitation as saying
"I think the settlement opens coverage up to pretty much any condition
that creates functional impairment." 

The federal court approval that will put this settlement into action may
not come until early 2013, and it will be at least another year before
Medicare has to make the change policy and provide additional details to
provider organizations that are looking to be reimbursed for these
services. But this is another reason to take a look at chronic
conditions with functional impairments as part of your planning process
- and to reconsider investments in the range of new tools for improving
cognitive functioning. As the settlement is finalized and new rules take
shape, we'll keep you updated. 

--------------

Settlement Eases Rules for Some Medicare Patients

By Robert Pear  October 22, 2012

WASHINGTON - Tens of thousands of people with chronic conditions and
disabilities may find it easier to qualify for Medicare
<http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthto
pics/medicare/index.html?inline=nyt-classifier>  coverage of potentially
costly home health care, skilled nursing home stays and outpatient
therapy under policy changes planned by the Obama administration.

In a proposed settlement of a nationwide class-action lawsuit, the
administration has agreed to scrap a decades-old practice that required
many beneficiaries to show a likelihood of medical or functional
improvement before Medicare would pay for skilled nursing and therapy
services.

Under the agreement, which amounts to a significant change in Medicare
coverage rules, Medicare will pay for such services if they are needed
to "maintain the patient's current condition or prevent or slow further
deterioration," regardless of whether the patient's condition is
expected to improve.

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 is based on the beneficiary's need for skilled care.

Judith A. Stein, director of the nonprofit Center for Medicare Advocacy
<http://www.medicareadvocacy.org/>  and a lawyer for the beneficiaries,
said the proposed settlement could help people with chronic conditions
like Alzheimer's disease, multiple sclerosis, Parkinson's disease,
stroke, spinal cord injuries and traumatic brain injury
<http://topics.nytimes.com/top/reference/timestopics/subjects/v/veterans
/traumatic_brain_injury/index.html?inline=nyt-classifier> . It could
also provide relief for families and caregivers who often find
themselves stretched financially and personally by the need to provide
care.

"As the population ages and people live longer with chronic and
long-term conditions," Ms. Stein said, "the government's insistence on
evidence of medical improvement threatened an ever-increasing number of
older and disabled people."

In many cases, she said, the denial of coverage led to a denial of care
because most people cannot afford to pay for these services on their
own.

Neither she nor Medicare officials could say how much the settlement
might cost the government, but the price of expanding such coverage
could be substantial.

Dr. Lynn Gerber, director of the Center for Study of Chronic Illness and
Disability <http://chhs.gmu.edu/ccid/>  at George Mason University in
Virginia, called the settlement "a landmark decision for Medicare
recipients with chronic illness and especially those with disability."

"Disability frequently accompanies many chronic conditions," Dr. Gerber
said, "and we often have no cures, so people are likely to experience
progressive disability. Rehabilitation, physical and occupational
therapy and skilled care are incredibly important in maintaining a
person's functional ability, performance and quality of life."

The lead plaintiff, Glenda R. Jimmo, 76, of Bristol, Vt., has been blind
since childhood. Her right leg was amputated below the knee because of
blood circulation problems related to diabetes, and she is in a
wheelchair. She received visits from nurses and home health aides who
provided wound care and other treatment, but Medicare denied coverage
for those services, saying her condition was unlikely to improve.

Another plaintiff, Rosalie J. Berkowitz, 81, of Stamford, Conn., has
multiple sclerosis, but Medicare denied coverage for home health visits
and physical therapy, on the ground that her condition was not
improving. Her family said she would have to go into a nursing home if
Medicare did not cover the services.

The proposed settlement, negotiated with lawyers from the Justice
Department and the Department of Health and Human Services, was
submitted last week to Christina C. Reiss, the chief judge of the
Federal District Court in Vermont. If she approves it, as expected, she
would have authority to enforce it for up to four years.

Asked about the proposed settlement, Robert D. Reischauer, a public
trustee of the Medicare program, said: "Unquestionably that would
increase costs. How much, I can't say." Other independent experts
expressed similar views.

While the settlement is likely to generate additional costs for the
government, it might save some money too. For example, physical therapy
and home health care might allow some people to avoid more expensive
care in hospitals and nursing homes.

Charles S. Miller, a Justice Department spokesman, and Erin Shields
Britt, a spokeswoman for the Health and Human Services Department, said
government lawyers had no comment.

The changes will apply to the traditional Medicare program and to
private Medicare Advantage plans. They apply to people 65 and older, as
well as to people under 65 who qualify for Medicare because of
disabilities.

The Obama administration initially urged the judge to dismiss the
lawsuit. Medicare officials denied that they had a formal policy
requiring beneficiaries to show their conditions would improve.

However, in a separate lawsuit in Pennsylvania, Medicare officials
argued the reverse. In order for Medicare to cover skilled nursing care,
they said in a legal brief, "there must be an expectation that the
beneficiary's condition will improve materially in a reasonable and
generally predictable period of time."

The same standard, in nearly identical language, is found in guidelines
used by some Medicare contractors, which review and pay claims on behalf
of the government. In a typical case, Medicare terminated coverage of
skilled nursing care and physical therapy for an 81-year-old woman
because she had "exhibited a decline in functional status."

Under the settlement, the federal court in Vermont will certify a
nationwide class of more than 10,000 Medicare beneficiaries whose claims
for skilled nursing and therapy services were denied before Jan. 18,
2011, when the lawsuit was filed. Many of them will have an opportunity
to have their claims re-examined under the revised standards.

Plaintiffs in the case include the National Multiple Sclerosis Society,
the Parkinson's Action Network, Paralyzed Veterans of America and the
National Committee to Preserve Social Security
<http://topics.nytimes.com/top/reference/timestopics/subjects/s/social_s
ecurity_us/index.html?inline=nyt-classifier>  and Medicare, an advocacy
group.

Neither the Medicare law nor regulations require beneficiaries to show a
likelihood of improvement. But some provisions of the Medicare manual
and guidelines used by Medicare contractors establish more restrictive
standards, which suggest coverage should be denied or terminated if a
patient reaches a plateau or is not improving or is stable. In most
cases, the contractors' decisions denying coverage become the final
decisions of the federal government.

http://www.nytimes.com/2012/10/23/us/politics/settlement-eases-rules-for
-some-medicare-patients.html

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