The Jimmo v. Sebelius Agreement: What It Means to Providers and Patients

I was recently approached by two different therapists with the same question pertaining to a very similar chain of events.  While that is not an unusual occurrence, the particulars of these scenarios were interesting and made me think that this may be something that other clinicians are facing as well.  In both instances, the therapists were preparing to discharge patients who, in the opinion of the therapists, had reached the point where continued skilled intervention was no longer necessary.  In each case, the clinicians felt that they could not justify medical necessity for continued care based on the condition, progress, and prognosis of their respective patients and, therefore, both therapists had made the decision to discharge the patients to home exercise programs.

The patients, who happened to be Medicare beneficiaries, had expressed a desire to continue receiving therapy, but neither wanted to sign an ABN in order to continue to receive the services which their therapists felt were not medically necessary or that required the skills of a licensed therapist.  Instead, both patients returned to their respective therapists (and referring physicians) with newspaper articles in hand stating that, based on a recent Medicare policy change, they could continue receiving therapy even if they had plateaued or ceased to demonstrate progress.  The articles, both recently published in the New York Times, addressed the Jimmo v. Sebelius class-action lawsuit and subsequent settlement agreement (from March 25^th: “A Quiet Sea Change in Medicare” and from May 29^th: “Navigating Medicare Policy on Physical Therapy and Other Services”).

Taken at face value, it is understandable how these articles might lead patients to believe that their therapy benefits spring from a well that never runs dry.  The authors even provided tips on educating your providers if they did not continue treatment.  While there have indeed been some changes, the details are a bit more complicated than what is presented in these articles.  Therefore, it is important that providers and patients alike fully understand what this recent settlement agreement actually means.

A LITTLE BACKGROUND

Before we go any further, let’s review where this all started.  The Jimmo v. Sebelius case was a class-action lawsuit filed by the Center for Medicare Advocacy on behalf of a group of Medicare beneficiaries against Kathleen Sebelius, then-secretary of HHS, which alleged Medicare claims involving skilled care were being inappropriately denied based on a rule-of-thumb “improvement standard”.  CMS denied establishing an improper “improvement standard” and maintained that Medicare policy had long recognized that there may be instances when no improvement is expected but skilled therapy services are necessary because of the patient’s medical complications, the complexity of the needed services, and/or in order to prevent or slow deterioration and maintain a beneficiary at the maximum, practicable level of function.

A settlement agreement was approved in January of 2013 which outlined a series of steps for CMS to undertake to clarify its existing policies and to provide new educational material on the subject.  CMS completed its benefit policy manual revisions in January of this year and reiterated that nothing in the settlement agreement modified, contracted, or expanded the existing eligibility requirements for receiving Medicare coverage.  Rather, the intent of the agreement was to clarify that when skilled services are required in order to provide care that is reasonable and necessary to prevent or slow further deterioration, coverage cannot be denied based on the absence of potential for improvement or restoration.

BENEFIT POLICY MANUAL REVISIONS

The revised portions of the manuals clarify that coverage of skilled therapy services “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.”  CMS has stated that the concept of skilled therapy services can similarly involve not only services that are restorative or rehabilitative in nature but, if certain standards are met, maintenance therapy as well.  Even if no improvement is expected, skilled therapy services are covered when (and here’s the important part that patients may not understand by reading articles like the ones in the New York Times) the assessment of the patient’s condition demonstrates that skilled care is necessary for the performance of a safe and effective maintenance program to maintain the patient’s current condition or to prevent or slow further deterioration.  Skilled maintenance therapy may be covered when the patient’s medical complications or the complexity of the therapy procedures require skilled care.

Therapists must make sure that their documentation justifies the necessity of skilled services provided, including (per CMS’s Jimmo vs. Sebelius Settlement Agreement Program Manual Clarifications Fact Sheet) “objective evidence or a clinically supportable statement or expectation that:

• In the case of rehabilitative therapy, the patient’s condition has the potential to improve or is improving in response to therapy; maximum improvement is yet to be attained; and there is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.
• In the case of maintenance therapy, the skills of a therapist are necessary to maintain, prevent, or slow further deterioration of the patient’s functional status, and the services cannot be safely and effectively carried out by the beneficiary personally or with the assistance of non-therapists, including unskilled caregivers.”

CMS’s Fact Sheet states further that, “Conversely, if the patient’s maintenance care needs can be addressed safely and effectively through the use of non-skilled personnel, coverage would not be available in this situation.”

It would behoove providers to be familiar with the benefit policy manual revisions so that they can not only provide care to patients who could benefit from skilled maintenance care but to also be able to answer questions from physicians or patients who may erroneously think that this settlement agreement means that Medicare beneficiaries can continue receiving treatment for an indefinite period of time regardless of whether or not the patient requires skilled intervention for their condition.  Providers can learn more about the difference between “rehabilitative therapy” and “maintenance programs” as well as tips on documenting the medical necessity of skilled care by reviewing Transmittal 179 which outlines the revisions to the Manual or by referencing the Medicare Benefit Policy Manual itself.