Federal Judge Says Medicare Patients
Do Not Have to Improve to Get Physical Therapy
Center for Medicare Advocacy
offers free "self-help" packets for Medicare patients explaining how to
challenge a denial of coverage
By Susan Jaffee, Kaiser Health News
This KHN story was produced in collaboration with
The Washington Post
June 25, 2013 - For years, seniors
in Medicare have been told that if they don't improve when getting
physical therapy or other skilled care, that care won't be paid for. No
progress, no Medicare coverage - unless the problem got worse, in which
case the treatment could resume.
This frustrating Catch-22 spurred a
class-action lawsuit against Health and Human Services Secretary
Kathleen Sebelius. In January, a federal judge approved a
settlement in which the government agreed that this
"improvement standard" is not necessary to receive coverage.
"This will help a lot of older or
disabled people who clearly need the skilled care and aren't getting it
because they will not get better," said Margaret Murphy, associate
director of the Center for Medicare Advocacy, which helped bring the
lawsuit. "The settlement recognizes that Medicare will pay for care to
maintain their condition and prevent backsliding."
took effect immediately for both traditional Medicare and
private Medicare Advantage plans. It applies to care by skilled
professionals in outpatient therapy, home health care and nursing homes,
Medicare officials have until
January to revise their manuals and launch an education campaign for
providers, people who staff the 800-MEDICARE information line and
others. The agreement does not require Medicare to tell beneficiaries
about the case.
Skilled Maintenance Services Are
Jimmo v. Sebelius. settlement.
Use this fact sheet now as evidence
that skilled maintenance services are
coverable for skilled nursing facility
care, outpatient therapy, and home
The Jimmo settlement was
approved on January 24, 2013 after a
fairness hearing, marking a critical
step forward for thousands of
beneficiaries nationwide. (See the Order
Granting Final Approval).
The lawsuit was brought on behalf of a
nationwide class of Medicare
beneficiaries by six individual
beneficiaries and seven national
organizations representing people with
chronic conditions, to challenge the use
of the illegal Improvement Standard.
Medicare spokeswoman Tami Holzman
said that the agency is "working to implement the terms of the
settlement and ensure that beneficiaries have access to the full range
of services that they are entitled to under the law." She also said that
the settlement means that "claims should not be denied solely based on a
rule-of-thumb determination that a beneficiary's condition is not
In April, Medicare officials posted
on the Web a two-page fact
sheet about the case stating that "a beneficiary's lack of
restoration potential cannot, in itself, serve as the basis for denying
Yet providers may not know about
the settlement yet and may still be telling patients, incorrectly, that
Medicare won't cover treatment if there's no improvement.
for Medicare Advocacy offers free "self-help" packets for
Medicare patients explaining how to challenge a denial of coverage and
suggests that patients make a copy of the settlement to reassure
health-care providers that Medicare will pay for maintenance care even
if Medicare has not yet sent out an official notice.
Here are some basic questions and
answers about the case.
Q. How does the settlement
affect outpatient physical, occupational and speech therapy?
A. Medicare covers these treatments
at home, in a nursing home or at a therapist's private office to
maintain the patient's condition and prevent decline. The settlement
makes clear that coverage does not depend on the "potential for
improvement from the therapy but rather on the beneficiary's need for
However, it does not change other
criteria for coverage: Patients still need a doctor's order indicating
that treatment is medically necessary, and therapy must be provided or
supervised by a trained professional. Also, payment caps on therapy
remain in effect. Medicare will pay up to $1,900 this year for physical
and speech therapy and another $1,900 for occupational therapy.
Therapists can obtain an exception
to allow additional care, however, according to a Medicare fact sheet.
http://www.medicare.gov/Pubs/pdf/10988.pdf There is no pay limit if
therapy is part of a home health care plan.
A. The agreement might have a major
impact on seniors with chronic illnesses who want to remain in their
homes by ensuring that Medicare covers skilled care there. These
services include therapy, mental health counseling and nursing care. To
be eligible, Medicare requires that the patient be homebound although
not necessarily confined to bed. Visiting nurses are covered for
services at home, including administering intravenous drugs or wound
care. There is no time limit for home care if the amount
of skilled care is reasonable and not given daily, if it is provided by
a trained professional and if the patient has a doctor's order
indicating that treatment is medically necessary.
Medicare pays for part-time home
health aides to provide assistance with dressing, eating and other daily
living activities, but only for patients who also receive skilled care
at home. Medicare doesn't pay for care from friends or family members.
Q. What does the agreement say
about nursing home coverage?
A. It states that skilled nursing
services are covered when "necessary to maintain the patient's current
condition or prevent or slow further deterioration."
Other requirements for nursing home
coverage still apply: Nursing services or therapy must be based on a
patient's clinical condition and be provided by a registered nurse,
licensed practical nurse or therapist. Beneficiaries qualify only after
having spent at least three days in the hospital as an inpatient. (Observation
hospital stays don't count.)
Medicare will cover up to 100 days
in a nursing home per "benefit period," which starts when a beneficiary
enters the hospital or a nursing home for skilled care and ends 60 days
after the skilled care has been discontinued.
Q. What about nursing home
residents in long-term care who have used up their 100 days and pay out
of their own pockets?
A. Seniors can still get skilled
care even if they are not improving and have used up their 100 days of
nursing home coverage. Even if residents do not qualify for Medicare for
their stay in the nursing home, Medicare may cover physical therapy and
other skilled care for those who meet the requirements for outpatient
therapy. The $1,900 outpatient therapy caps would also apply.
Q. Will Medicare reimburse
people who were denied coverage due to a lack of improvement?
Yes, a special review process will
be set up for patients whose claims were denied after the lawsuit was
filed on Jan. 18, 2011.