In 2014 in the landmark case of Jimmo v. Sebilius, the practice of denying Medicare coverage for skilled care solely because someone is not “improving” was ruled unlawful. “Jimmo” holds that upon proper showing of need, skilled maintenance therapy is covered by medicare.
Unfortunately, in a post Jimmo world, elders with chronic conditions and medical complexities continue to have difficulty getting medicare coverage for skilled maintenance therapy.
The culture of the infamous “improvement standard” is deeply ingrained at all levels of care, and it will take patience and persistence to change the status quo. “Transformative change” doesn’t happen quickly or easily. Such is the case with implementing the Jimmo v. Sebelius paradigm shift for obtaining extended maintenance therapy for elders with chronic illness and the disabled of all ages.
The purpose of this article is to encourage and empower patients, family members, and elder care advocates at the skilled nursing and home health levels to challenge inappropriate Medicare coverage denials.
At the risk of oversimplification, what it all boils down to is this: Maintenance therapy has been divided by CMS into two sections: either “skilled” or “unskilled.” One is paid by Medicare and one is not. Skilled maintenance therapy can be provided with a physician’s order, and is performed by licensed therapists (PT, OT or ST) due to the complex nature of the patient’s needs. Unskilled care can be provided by the patient themselves or by an unskilled caregiver when the patient’s medical condition doesn’t require a skilled therapist to perform the daily program.
Medicare will only pay for “skilled therapy.” According to CMS, “skilled therapy” is justified for the following two reasons and only if an unskilled caregiver cannot safely be trained to provide the needed therapy:
1) to maintain function, or
2) to prevent or slow further deterioration of a chronic condition.
The problem is that for multiple reasons this turns out to be a square peg in a round hole; a policy application that is not well suited for the real world of multiple chronic illness and disability. It begs a discussion of the fractured interface between our acute and long term care models; but that’s for a different article.
For many reasons, not least of which is uncertainty about Medicare reimbursement in this new maintenance therapy arena, skilled nursing home health agencies alike are very conservative and usually eager to pass off the maintenance therapy to RNAs, or “restorative nursing aides” (at skilled nursing level) or family/private caregiver (at home health level).
Unfortunately, it is quite often the case that no adequate caregiver exists to provide the needed therapy or, if they do, they are not reliable or trainable. This leads to the same downward spiral of accelerated deterioration in condition that Jimmo is supposed to prevent.
Finding a caregiver is no less problematic at a skilled nursing facility because the non-skilJed care providers at this level who are supposed to do the therapy are in short supply. Very often RNAs are pulled off their restorative nursing duties in order to “work the floor” when the facility is short staffed, leaving no one available to perform the needed maintenance therapy.
What can be done while CMS and advocacy organizations identify “disconnects” in the system and solutions? Consumers and advocates should consider the following steps:
The first step to obtaining coverage is to ask your skilled therapy provider and your physician to prescribe extended therapy before your Medicare ends. Their support for additional skilled care will help build your case. You may need to urge them to focus on the clinical need, and not to worry about payment. That part should not be their concern. It is the clinical decision that drives whether or not Medicare will cover.
The second step is to meet your appeal deadlines and explain why continued extended therapy is necessary to “maintain” or “prevent further deterioration” in light of the medical records. Success at any level of review requires a strong grasp of the patient’s condition and an ability to explain this. Try not to be discouraged if people who should know better still discuss “lack of improvement” as a reason to stop benefits. The law is on your side, and people are still learning about Jimmo.
Your third step is to make sure that extended services continue to be provided to your loved one so that coverage may be granted retroactively upon a successful appeal.
If your loved one’s medical condition does not qualify for skilled maintenance therapy, you can request that they receive daily unskilled maintenance therapy from their RNA program in a skilled nursing facility. The patient or their authorized legal representative should consult the facility charts to make sure this is being done. If at home, you can request your home health therapist to train you or a caregiver of your choice to perform the needed therapy program.
As can be expected, working with the health care and the Medicare system to make sure your rights are respected can be a cumbersome process. A Certified Elder Law Attorney and Geriatric Care Manager can help ensure that the appropriate standard of coverage is applied, appropriate appeal deadlines are met, and that your loved one’s unique needs are communicated.
The Center for Medicare Advocacy contains a number of resources for consumers on the law of extended therapy coverage, and to guide you through the process of an appeal: www.medicareadvocacy.org.
If you need help managing the care of your loved one, Grace Care Management can help and we are here for support. Give Grace Care Management a call at (760) 789-9177 for a free consultation.
