Knowledge Base Article

For many years, many people (providers, patients, and even Medicare contractors and reviewers) believed that one basis for Medicare coverage of therapy services was an expectation of improvement in the patient’s function. In 2013, a court case settlement known as the Jimmo Settlement Agreement clarified that “the Medicare program covers skilled nursing care and skilled therapy services under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met).” However, this was taking a while to sink in so the case went back to court in 2017 and the court again confirmed there is no improvement standard for therapy services. The 2017 decision resulted in a CMS webpage dedicated to Jimmo including a corrective statement disavowing the improvement standard and further clarification with a listing of frequently asked questions (FAQs) and other resources. There were also national calls and training for contractors making coverage decisions.

It is interesting and amusing to note that all the Medicare “clarifications” insist this is not a policy change, but is consistent with Medicare’s longstanding policy. They do admit however, “the Jimmo Settlement Agreement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve.”

Section 220 (Coverage of Outpatient Rehabilitative Therapy Services) of Chapter 15 of the Medicare Benefit Policy manual was revised in response to the Jimmo settlement and includes this statement, “Skilled therapy services may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.” The manual now specifically includes separate sections for Rehabilitative Services and Maintenance Programs. Rehabilitative therapy addresses recovery or improvement in function with restoration to a previous level of health and well-being when possible. Maintenance programs are to maintain functional status or to prevent or slow further deterioration in function. The key to coverage for both types of services is that they must require the specialized skill, knowledge and judgment of a qualified therapist and meet all other Medicare therapy coverage requirements.

Last month, Noridian JE published a new coverage article for Maintenance Programs effective August 31, 2018 that is again a clarification regarding outpatient therapy services and maintenance programs. The article states, “Maintenance programs are developed to:

1. Maximize the patient's rehabilitation potential;
2. Assure patient safety;
3. Train the patient, family member and/or unskilled staff in home maintenance activities;
4. Prevent further decline in the patient's condition.”

The article also makes it clear that once services in a maintenance program can be safely and effectively furnished by non-skilled personnel without the supervision of a qualified professional, the need for coverage of skilled therapy is over. At that point, the patient should be discharged from therapy.

The Jimmo FAQs discuss that specific documentation is not an element of coverage, but documentation is the means to support that skilled services were indeed necessary. The Noridian article requires clear documentation of:

• Focus on establishing or revising an individualized maintenance program,
• The change in the patient’s status/condition that justifies skilled intervention, and
• Services requiring a skilled level of care.

Documentation should include specific goals for the patient that make it clear what benefit to the patient is expected from the therapy, especially since it is not an improvement in function. Documentation should explain why a therapist is needed – this may relate to specifics of the patient’s condition or patient safety that could not be addressed by non-skilled personnel. When documenting, therapists should think about the story they want to tell about their patient’s limitations, that patient’s need for their specific skills, and the benefit those skills will bring to the patient.

My elderly father was a perfect candidate for this type of therapy services. He has multiple conditions that limit his mobility and function for which a maintenance exercise program would benefit him. Because of his conditions, the skills of a therapist were required to establish a program and to initially ensure proper performance of the program. Once the program was established and taught, my dad and his caregiver were able to continue the program safely and effectively without the supervision of the therapist. I did not see the home health therapist’s documentation, but hopefully it explained the goals were to establish a home exercise program to prevent or slow further decline in function and mobility. The skills of a therapist were required because of multiple conditions affecting strength, function, and cognition; a high fall risk; and the need for specific strengthening exercises performed properly. Patient would be discharged once he could safely and properly perform the program alone or with non-skilled assistance.

To clarify (yet again), therapy services can be covered by Medicare even if there is no expectation of improvement in the patient’s function. The services must require the skills of a therapist to safely and effectively develop and/or perform the maintenance program. Once the patient or non-skilled personnel can perform the maintenance program, the services are no longer covered.