CMS CLARIFICATION JIMMO VS. SEBELIUS Liz Almeida-Sanborn, MS, PT, President Maria Maggi, PT, Vice President of Compliance Jodi Wenzel, MPT, Vice President of Operations
OBJECTIVES Participants will: Understand the history and background of the Jimmo v. Sebelius Settlement Agreement Learn about No Improvement Standard in determining Medicare coverage for maintenance claims that require skilled care. Learn about CMS enhanced guidance on appropriate documentation to support skilled care. Learn about the importance of communication among all members of the care team regarding the development and outcomes of the skilled observations, assessments, treatment and training performed.
JIMMO VS. SEBELIUS What does it all mean?
JIMMO CASE January 24, 2013- U. S. District Court of Vermont approved a settlement agreement in which the plaintiffs alleged that Medicare contractors were inappropriately applying an Improvement Standard in making claims determinations for Medicare coverage involving skilled care (SNFs, Home Health and outpatient therapy benefits). The settlement agreement set forth a series of specific steps for the CMS to undertake, including issuing clarifications to existing program guidance and new educational material on this subject. The goal of this settlement agreement is to ensure that claims are correctly adjudicated in accordance with existing Medicare policy, so that Medicare beneficiaries receive the full coverage to which they are entitled.
BACKGROUND Center for Medicare Advocacy (CMA) alleged that Medicare claims were being inappropriately denied by contractors based on a rule-of-thumb Improvement Standard -claims were being denied due to a beneficiary s lack of restoration potential, even though the beneficiary did in fact require skilled care in order to prevent or slow further deterioration of clinical condition. In the Jimmo lawsuit, CMS denied establishing an improper rule-of-thumb Improvement Standard. The Court never ruled on the validity of the Jimmo plaintiffs allegations because a settlement was reached.
UNDERSTANDING JIMMO A beneficiary s lack of restoration potential cannot, in itself, serve as the basis for denying coverage: without regard to an individualized assessment of the beneficiary s medical condition and the reasonableness and necessity of the treatment, care, or services in question. Conversely, coverage would not be available in a situation where the beneficiary s care needs can be addressed safely and effectively through the use of non-skilled personnel.
CMS STATEMENTS it is essential and has always been required that claims for skilled care coverage include sufficient documentation to substantiate clearly that skilled care is required, that it is in fact provided, and that the services themselves are reasonable and necessary (Jimmo case) does not represent an expansion of coverage, but rather, serves to clarify existing policy
CMS PLAN TO ADDRESS JIMMO 1. Update Program Manuals The Medicare program manuals were reworded for clarity, to reinforce the intent of the policy. 2. Educational Campaign CMS agreed to disseminate written materials, including: Program Transmittal; Medicare Learning Network articles 3. Claims Review Review of a random sample of coverage decisions to determine overall trends and identify any problems.
ACCORDING TO THE TERMS OF THE SETTLEMENT AGREEMENT, CMS HAD TO COMPLETE THE MANUAL REVISIONS AND EDUCATIONAL CAMPAIGN BY JANUARY 23, 2014, ONE YEAR OF THE APPROVAL DATE OF THE SETTLEMENT AGREEMENT. CMS complied with this timeline and the changes became effective January 7, 2014.
SUMMARY OF CHANGES CMS revised its Benefit Policy Manual in order to clarify that coverage of skilled nursing and rehab does not turn on the presence or absence of a beneficiary s potential for improvement, but rather on the beneficiary s need for skilled care Skilled care may be necessary To improve a patient s current condition To maintain the patient s condition Or to prevent or slow further deterioration of the patient s condition
ASPECTS OF THE MANUAL CLARIFICATIONS No Improvement Standard is to be applied in determining Medicare coverage for maintenance claims that require skilled care Such coverage depends not on the beneficiary s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves Enhanced guidance on appropriate documentation Though Jimmo vs. Sebelius settlement does not explicitly reference documentation requirements, CMS has nevertheless decided to use this opportunity to introduce additional guidance in this area The Settlement Agreement Nothing in this Settlement Agreement modifies, contracts, or expands the existing eligibility requirements for receiving Medicare coverage
CHAPTER 8-SNF SERVICES-DOCUMENTATION TO SUPPORT SKILLED CARE Skilled involvement is necessary in order for the services in question to be furnished safely and effectively The services are in fact reasonable and necessary for the treatment of a patient s illness or injury Such determinations would be made from the perspective of the pt s condition when the services were ordered and what was, at that time, reasonably expected to be appropriate treatment for the illness or injury It is expected that the documentation in the pt s medical record will reflect the need for the skilled services provided (interdisciplinary approach)
CHAPTER 8-SNF SERVICES-DOCUMENTATION TO SUPPORT SKILLED CARE Thorough and timely documentation with respect to treatment goals is required when performing maintenance when by definition there is no improvement to evaluate Establishing that a maintenance program services are reasonable & necessary would involve regularly documenting the degree to which the program s treatment goals are being accomplished To maintain the pt s current condition Or slow further deterioration of the pt s condition Assessment of all goals must be performed in a frequent and regular manner
CHAPTER 8-SNF SERVICES-DOCUMENTATION TO SUPPORT SKILLED CARE Patient s medical record must include the following documentation: The history and physical exam pertinent to the pt s care The skilled services provided The pt s response to the skilled services provided during the current visit The plan for future care based on the rationale of prior results A detailed rationale that explains the need for the skilled service in light of the pt s overall medical condition and experiences The complexity of the service to be performed Avoid vague or subjective descriptions Patient tolerated treatment well Continue POC Patient remains stable
CHAPTER 8-SNF SERVICES-SKILLED THERAPY SERVICES TO PATIENTS Therapy services are considered skilled when they are so inherently complex that they can be safely and effectively performed only by, or under the supervision of a qualified therapist and the pt s medical condition requires it A service is not considered a skilled therapy service merely because it is furnished by a therapist The unavailability of a competent person to provide a non-skilled service does not make it a skilled service when a therapist furnished the service
CHAPTER 15-OUTPATIENT REHAB SERVICES Rehabilitative Therapy Newly revised: If an individual s expected rehab potential is insignificant in relation to the extent the duration of therapy services are required to achieve such potential, rehab therapy is not reasonable and necessary In evaluating a claim for skilled therapy that is rehabilitative, CMS feels it is entirely appropriate to consider the pt s potential for improvement with the services Maintenance Programs Establishment or design of maintenance programs To establish or design a maintenance program Instruct the patient or caregiver Periodic reassessments or reevaluations Delivery of maintenance programs The therapy procedures required are of such complexity and sophistication that the skills of a therapist are required to furnish the procedures Does not depend on potential for improvement
CHAPTER 15-OUTPATIENT REHAB- EXAMPLES Example #1: (reflects an outpt scenario in which a pt has been receiving ongoing therapy under a PT POC and the PT begins establishment of the maintenance program prior to the pt s anticipated discharge date) A pt with Parkinson s disease is nearing the end of a rehabilitative PT program and requires the services of a therapist during the last week(s) of treatment to determine what type of ex s will contribute the most to maintain function or to prevent further deterioration of the pt s present functional level following cessation of treatment. In such situations, the establishment of a maintenance program appropriate to the capacity and tolerance of the pt by the therapist, the instruction of the pt or family members in carrying out the program and such reassessments and / or reevaluations as may be required may constitute covered therapy because of the need for the skills of a qualified therapist
CHAPTER 15-OUTPATIENT REHAB- EXAMPLES Example #2: (is an outpt scenario in which a pt who has not been receiving ongoing therapy under a therapy POC needs a maintenance program) A pt with MS needs a maintenance program to slow or prevent further deterioration in communication ability caused by the medical condition. Therapy services from a SLP may be covered to establish a maintenance program even though the pt s current medical condition does not yet justify the need for individual skilled therapy sessions. Evaluation, establishment of the program and training the family or support personnel may require the skills of a therapists and would be covered. NOTE: In this example the skills of a therapist are not required to actually carry out the maintenance program services and as a result are not covered
CHAPTER 15-OUTPATIENT REHAB- EXAMPLES Example #3: (describes a scenario where the skilled services of the therapist would be necessary to actually carry out the maintenance program services) Where there is an unhealed, unstable fracture that requires regular exercise to maintain function until the fracture heals, the skills of a therapist may be needed to ensure that the fractured extremity is maintained in proper position and alignment during ROM exercises. In this case, since the skills of a therapist may be required to safely carry out the maintenance program given this particular pt s special medical complications, therapy services would be covered
CHAPTER 15-OUTPATIENT REHAB- EXAMPLES Example #4: (describes another scenario where the skilled services of a therapist are needed to actually carry out the maintenance program services) A pt with a long history of MS has difficulty transferring in and out of the WC and maintaining ROM of the LE s due to increased spasticity muscle tone since the most recent exacerbation episode of her MS. The pt is unable to walk but is independent with the use of her WC. The pt needs to be able to safely transfer in and out of her WC by herself or with the assistance of a family member or other caregiver. After an individualized assessment by the PT, and given the pt s overall medical and physical condition, the skills of the PT are required to instruct the pt and / or caregivers in proper techniques of WC transfers and LE stretches due to the special medical complications from the progression of the MS. When the PT determines that the pt can carry out the transfers and stretching activities safely and effectively, either alone or with the assistance of caregivers, the skills of the PT are no longer necessary to furnish the maintenance therapy, and the pt is discharged from PT
CHAPTER 15-OUTPATIENT REHAB- EXAMPLES Example #5: (describes a scenario where a patient on a maintenance program needs intermittent review and possibly a new or revised maintenance program) A pt who has a progressive degenerative disease is performing the activities in a maintenance program established by a therapist with the assistance of family members. The program needs to be re-evaluated to determine whether assistive equipment is needed and to establish a new or revised maintenance program to maintain function or to prevent or slow further deterioration. Intermittent re-evaluations of the maintenance program would generally be covered as this is a service that requires the skills of a therapist. Should the therapist conducting the re-evaluation determine that the program needs to be revised, these services would generally be covered
CHAPTER 15-OUTPATIENT REHAB- THERAPY PRACTICE Listed under both Physical Therapy and Occupational Therapy: PTA s/cota s may not provide evaluative or assessment services, make clinical judgments or decisions; develop, manage or furnish skilled maintenance program services or take responsibility for the service
Identifying patients Interdisciplinary approach Medical record must support referral for services Communication system between nursing and rehab Establish interdisciplinary referral process
Identifying Patients Referrals generated to therapy Therapy will determine, following evaluation, if therapy skill will be restorative in nature or of such a complexity that it requires the skills of a therapist for maintenance program Patients that have documented evidence in the medical record of recent declines in function or newly exacerbated symptoms. Patients that have demonstrated declines in function in the past that repeatedly require skilled therapy. Patients currently on a maintenance program that are too complex in nature that may require the skills of a therapist. Example: CVA with a brace, hemicane, and rigid gait
QUESTIONS Please feel free to contact us: Liz Almeida-Sanborn, President John Calcavecchia, Vice President of Business Development (860) 610-0400 or (855)-846-3667