Failure to Improve Used to Deny Medicare Coverage

Failure to Improve Is Still Being Used, Wrongly, to Deny Medicare Coverage – The New York Times

For months, physical therapists worked with Mrs. Kirby, a retired civil servant who is now 75, trying to help her regain enough mobility to go home. Then her daughter received an email from one of the therapists saying, “Edwina has reached her highest practical level of independence.”

Translation: Mrs. Kirby wouldn’t receive Medicare coverage for further physical therapy or for the nursing home. If she wanted to stay and continue therapy, she’d have to pay the tab herself.

Medicare beneficiaries often hear such rationales for denying coverage of skilled nursing, home health care or outpatient therapy:

• They’re not improving.
• They’ve “reached a plateau.”
• They’re “stable and chronic,” or
• have achieved “maximum functional capacity.”  

Deanna Kirby wasn’t buying it. “I knew they couldn’t refuse you, even if you’re not improving,” she said.

She’s right.

A federal judge last month ordered the federal Centers for Medicare and Medicaid Services to do a better job of informing health care providers and Medicare adjudicators that the so-called improvement standard was no longer in effect

Though never part of Medicare regulations, the improvement standard was written into the C.M.S. manuals that providers and claims administrators relied on. “It was a policy they followed for 30 years,” Mr. Deford said.

the improvement standard was “an old wives’ tale.”

Older patients with chronic and progressive diseases — dementia, Parkinson’s, heart failure — are particularly vulnerable to that now-discredited criterion. They’re unlikely to improve over time.

Yet therapy might help them stave off decline and hold on to their ability to function a while longer.

By early this year, however, the Center for Medicare Advocacy was hearing from many sources that despite the settlement, providers and the contractors reviewing Medicare claims were still denying coverage when beneficiaries didn’t demonstrate improvement.

The Centers for Medicare and Medicaid Services showed no inclination to take further steps, so the plaintiffs’ lawyers went back to court, seeking enforcement of the agreement.

The federal judge in Vermont who oversees the settlement ruled in August that C.M.S. didn’t have to further revise its manuals, but did have to mount a better educational campaign.

By early next month, it has to explain how it plans to do that. A C.M.S. spokeswoman said the agency had reviewed the court’s order, but would make no other comment.

Of course, patients and families have the same right to appeal coverage denials that they’ve always had. (A notice to this effect is buried somewhere in the paperwork they sign.)

They also have the same odds of prevailing they’ve always had: very low, said Judith Stein, the executive director of the Center for Medicare Advocacy

The Kirbys won their appeal, but still didn’t get the full number of days of skilled nursing care and therapy Edwina Kirby was entitled to, Ms. Dudek said.

As a result, the Kirbys spent about $100,000 out of pocket on the nursing facility and on at-home care afterward.

And despite her therapist’s earlier prediction, Edwina Kirby did improve. She still uses a wheelchair in her ranch-style house, but she can stand and transfer to a chair or use the toilet. She can feed herself and wash the dishes.