Patients Win! Maintenance Therapy Settlement Gets Preliminarily Approval!

Physical therapists' patients can take cheer this holiday season, nestled all snug their beds, with the knowledge that Maintenance Therapy will still be here through Christmas.

The class action lawsuit filed and won by the Center for Medicare Advocacy has tremendous potential to simplify therapy decision making by managers, therapists and patients.

Just in time, too, considering the Byzantine complexity brought by Medicare Manual Reporting and, now, Functional Reporting for 2013.

According to the Center for Medicare Advocacy, on Sunday, December 9th, 2012:

"A proposed settlement agreement was filed in federal District Court on October 16, 2012. On November 20, Chief Judge Christina Reiss of the District of Vermont signed an order preliminarily approving the settlement agreement. 

By December 10, 2012, notice of the settlement will be posted on the websites of numerous organizations, including the seven national organizations that served as plaintiffs in the case, which will alert advocates and beneficiaries to the terms of the settlement."

Many observers believe that Medicare will somehow acquit themselves of 35-plus years of illegal behavior and continue to deny care based on the just-overturned "Improvement Standard".  The CMA announcement, however, implies that the class participants, not Medicare, are the ones in position to accept or deny the Settlement.

"Class members will be able to file written objections to the settlement. 

The court will hold a Fairness Hearing on January 24, 2013 'to determine whether the settlement agreement is fair, reasonable and adequate,' after which it is hoped that the judge will issue an order permanently approving the settlement agreement."

The Settlement only applies to the illegal Improvement Standard, or the idea that people must make significant and measurable gains in function in order to continue receiving therapy services. Two further conditions still apply: the services must be of sufficient complexity that a lesser trained provider could not safely perform the care and the patient must still demonstrate that the services are medically necessary.

I've had conversations with therapists who support the Improvement Standard on the grounds that "we can't afford to expand Medicare right now".

The Settlement is not an expansion of Medicare. The Settlement is a clarification of the Congressional intent to provide Medicare beneficiaries with a level of care that would not leave them disabled and institutionalized.

For my entire 20-year career, I've been told by well-meaning PT managers and staff that we must "show progress" in order to treat our patients. In turn, my managers had been told by the Medicare Carriers and Fiscal Intermediaries (mainly Blue Cross/Blue Shield and other commercial insurers) that claims would be denied if the patients didn't "show progress".

It turns out that the insurance companies, acting under the aegis of Medicare, were breaking the law.

Here is testimony the the CMA website:

"These changes [from the Settlement] are extremely meaningful, as my mother has repeatedly been denied the ability to continue the physical therapy she needs in order to prevent further deterioration of her condition. 

It has been extraordinarily frustrating, and after the last cessation of Physical Therapy and subsequent deterioration actually endangered her life, her quality of life was greatly affected, resulting in extremely expensive 24/7 care. 

If she could have kept her PT services, this would not have happened!" 

-Veronica, New Hampshire

If the Settlement sticks (as I think it will) it will be the best Christmas present of my entire career.

Maintenance #PhysicalTherapy Paid by Medicare?

This may be the biggest change to Medicare affecting physical therapists since the March 23rd, 2010 passage of the Patient Protection and Affordable Care Act (PPACA).

Medicare may now be forced to adhere to the statutory language enacted by the Congress instead of the more restrictive policies adopted by individual Medicare Administrative Contractors (MACs) who limited therapy services because the patient did not show progress.

In other words, Medicare may now be forced to pay for "Maintenance Therapy".

A proposed settlement announced today at 2pm by the Center for Medicare Advocacy (CMA) will be held in Washington DC. According to the CMA:

"Under the agreement, which amounts to a significant change in Medicare coverage rules, Medicare will pay for such services if they are needed to 'maintain the patient’s current condition or prevent or slow further deterioration,' regardless of whether the patient’s condition is expected to improve."

Physical therapists have long been told by Medicare Auditors that we must discharge our patients when they "plateau" and their function no longer improves. To be sure, physical therapists shouldn't use today's decision to ignore equally challenging documentation guidelines. Physical therapists still need to show "skilled physical therapy" and "medical necessity for physical therapy". This New York Times article discusses some of the new cost implications to Medicare of maintenance therapy.

However, the CMA has removed a significant barrier to care between physical therapists and their patients.

"For decades, Medicare beneficiaries – particularly those with long-term or debilitating conditions and those who need rehabilitation services – have been denied necessary care based on a so-called “improvement standard.” 

This illegal practice means that Medicare coverage for vital care is denied to thousands of individuals on the grounds that their condition is stable, chronic, not improving, or that the necessary services are for “maintenance only”. 

The Improvement Standard conflicts with the law."

This decision will impact patients and physical therapists in most settings, including the private practice physical therapy clinic, the home health setting, skilled nursing and the hospital outpatient setting.

What do you think? Are you in favor of Medicare paying for maintenance therapy?

Skilled Physical Therapy Tied to Medicare Improvement Standard

Many physical therapists still believe that Medicare will not pay for therapy that does not lead to a change in functional status.

This is NOT true.

The Medicare Improvement Standard...

"...has a particularly devastating effect on patients with chronic conditions such as

• Multiple Sclerosis
• Alzheimer's disease
• ALS
• Parkinson's disease
• paralysis."

According to the Center for Medicare Advocacy:

"People with chronic conditions and long-term illnesses are often denied Medicare coverage because their medical condition will not supposedly:

• Improve on functional status scores
• They need maintenance services only
• They have plateaued
• They are chronic and stable

These reasons are referred to as the Medicare "Improvement Standard."  

Medicare is often the only insurance for this population, so, unfortunately, Medicare coverage denials can result in the loss of necessary health care.

This short podcast (7:11) from the Center for Medicare Advocacy may help you understand some of the issues these patients face in trying to get their necessary healthcare.

Unfortunately, due the the complex nature of Medicare documentation many physical therapists must waste valuable time learning how to document "skilled physical therapy" rather than actually treating patients.

I have found that patients often encounter barriers from their own physical therapists who may be uncertain or afraid to append the -KX modifier when care beyond the $1,880 is clearly necessary.

If patient progress is slow, marked by significant setbacks or difficult to measure the physical therapist may refuse to continue treating the patient.

Even though the patients' Medicare benefit allows physical therapy for these conditions.

The physical therapists' reluctance is due to fear of a Medicare Audit.

The Center for Medicare Advocacy has pressed a class action lawsuit against Kathleen Sebelius that may force Medicare to acknowledge its illegal "Improvement Standard" so that physical therapists may gain some clarification on our documentation requirements.

Please share tips on how YOU document exceptions to the $1,880 physical therapy cap.