Knowledge Base Article

There are times in life when your first attempt at something is just not good enough.  Throughout life, you may often be told to try again to get it right:

• As a teenager, you cleaned your room. Your mother took one look and said, “Not good enough – do it again.”
• You turned in a school term paper and the teacher promptly returns it with lots of red writing that points out errors, offers suggestions and says “try again.”
• Your boss tells you the proposal you submitted is not exactly what she wanted and requests you make modifications and try again.

Such constructive criticism may make you mad, embarrassed, or simply thankful for a second chance.  However you feel, you must get to work and try again.  It happens to everyone.

Case in point, it happened in February of this year to CMS, specifically to the Secretary of Health and Human Services.  The Court told the Secretary to try again in regards to the Educational Campaign for the Jimmo settlement. 

First a review of the Jimmo Settlement – in 2011, a class action suit was filed against the Secretary of HHS, Jimmo v. Sebelius, in which the plaintiffs alleged that Medicare contractors (MACs) were inappropriately applying an “Improvement Standard” in making claims determinations for Medicare coverage involving skilled care (e.g., the skilled nursing facility (SNF), home health (HH), and outpatient therapy (OPT) benefits).  In other words, MACs were denying claims for skilled care because there was no expectation the patient could improve. The argument was that Medicare should cover these services because the beneficiary did require a covered level of skilled care in order to prevent or slow further deterioration in his or her clinical condition. The Court agreed.  Medicare also agreed such services should be covered, but claimed that had always been their policy.  They denied ever having an “Improvement Standard” rule-of-thumb.  They further stated Medicare policy had long recognized skilled care may be required in order to prevent or slow deterioration and maintain a beneficiary at the maximum practicable level of function.

To promote better understanding and application of their existing policies concerning maintenance care, Medicare agreed 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.”  To accomplish this, CMS agreed to:

• Revise the relevant program manuals used by Medicare contractors to reinforce the intent of the policy. Specifically, coverage of therapy “...does not turn on the presence or absence of a beneficiary’s potential for improvement from the therapy, but rather on the beneficiary’s need for skilled care.”
• Provide an educational campaign for contractors, adjudicators, and providers and suppliers. Education efforts would include written materials, such as Program Transmittals, MLN Matters articles, updated 1-800 MEDICARE script, and national conference calls to communicate the policy clarifications and answer questions.
• Establish accountability measures such as random reviews to determine trends and identify problems, and review of individual claims determinations that may not have been made in accordance with the principles set forth in the settlement agreement.

Medicare stressed that this was not an expansion of coverage, but clarification of existing policies. They also used the Jimmo settlement revisions to introduce additional guidance on documentation requirements.

“Care must be taken to assure that documentation justifies the necessity of the skilled services provided. Justification for treatment would include, for example, objective evidence or a clinically supportable statement of 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 revised the manuals.  The revisions can be seen as red text in the attachments to Transmittal 179 (CR8458) updating chapters of the Medicare Benefit Policy manual regarding Inpatient Rehab facilities, Home Health services, Skilled Nursing Facilities, and Outpatient Rehabilitative Therapy services (physical therapy, occupational therapy and speech language pathology services).

They also provided some education, but alas, it was not good enough.  In a second suit brought in 2016 (Jimmo v. Burwell), the Court found that CMS (the Secretary) “failed to fulfill the letter and spirit of the Settlement Agreement with respect to at least one essential component of the Educational Campaign.…(S)ome of the information provided by the Secretary in the Educational Campaign was inaccurate, nonresponsive, and failed to reflect the maintenance coverage standard.”

In a February 2017 ruling, the Court mandated implementation of a Corrective Action Plan developed by the Secretary (which goes beyond the requirements of the Settlement agreement) with two required additions.  Here are some of the actions CMS is required to take by September 4, 2017:

• CMS will create a webpage on its website dedicated to the Jimmo The webpage will include:
• A message at the top of the webpage summarizing the clarifications to Medicare policy made pursuant to the settlement,
• A statement from CMS disavowing the application of the so-called "Improvement Standard" as improper under Medicare policy for the SNF, HH, and OPT benefits, while making clear that CMS has consistently denied the existence of such an "Improvement Standard."
• Access to public documents related to the settlement,
• Directions for providers and suppliers to the appropriate MAC for questions regarding individual claims,
• A set of Frequently Asked Questions (FAQs) regarding the policy clarification resulting from the Jimmo settlement,
• Messages notifying providers, adjudicators, contractors, and other stakeholder of the webpage and including the disavowal statement, and
• Letters to the MACs and Medicare Advantage Organizations (MAOs) directing them to conduct, within a specified timeframe, additional training on the Jimmo manual clarifications with training materials provided by CMS.

The first “additional requirement” of the Court agreement is a prescribed “Corrective Statement” adopted by the Court to be included on the Jimmo webpage, in the FAQs, and in the written materials and oral statements the Secretary has agreed to disseminate as part of her corrective action plan.  The second is that CMS shall hold a national call in which the Corrective Statement is orally disseminated.  To alleviate any confusion about the purpose of the call, the call notice must state, “This call will include corrective action mandated by the court overseeing the Jimmo settlement, clarifying the rejection of an improvement standard and explaining the maintenance coverage standard now included in the Medicare Beneficiary Policy Manual."

In plain language, what does this mean for therapy providers? 

1. It means they can provide therapy services to Medicare patients who do not have the potential to improve, but need skilled care to prevent further decline in function.
2. The term “skilled” is key; these services could not safely and effectively be provided by non-skilled personnel.
3. Documentation must support the need for skilled care and that the therapy is expected to prevent or slow further deterioration in the patient’s condition.
4. As with all therapy, the patient should benefit from the therapy as expected in established goals. If the goals are to slow further decline, documentation should support that the therapy is accomplishing that goal.
5. Therapy caps and the therapy threshold still apply to these services. Medically necessary services beyond the cap and threshold can still be provided, but may be reviewed by Medicare to ensure it was indeed medically necessary.

So bottom line for therapists – be reasonable with therapy duration and document thoroughly.

For inpatient hospital providers, this “maintenance therapy” standard could affect the need for care in post-acute care settings such as IRF, SNF, or HH care.

The new Jimmo Settlement webpage  was made live a couple of weeks ago and a notice was published in the August 24, 2017 MLN Connects publication both including the required “Corrective Statement.”  CMS appears to be off to a good start on their re-try.  Glad it wasn’t my term paper.