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?

Free 1-hour Webinar on Excessive use of the KX modifier

Florida's Medicare Admistrative Contractor (MAC) First Coast Service Options (FCSO) has identified excessive use of the KX modifier on claims submitted by providers billing outpatient therapy services.

Medicare only reimburses for services that are considered to be reasonable and necessary for the diagnosis and treatment of illness or injury or to improve the functioning of a malformed body member.

Medicare does not cover maintenance therapy.

The webinar on the Therapy cap exception process and use of the KX modifier will be held on Tuesday, May 22 at 11:30 AM-12:30 PM EST. The delivery language is English.

• Are you the person responsible for billing outpatient therapy services for your provider?
• Are you a physician, non-physician practitioner, or qualified therapist performing outpatient therapy services for Medicare beneficiaries?
• Do you know how to determine if the beneficiary qualifies for the automatic exception process?
• Are you or your billing company appending the KX modifier to all therapy claims?
• Did you know that excessive use and abuse of the KX modifier could result in a probe review of your practice?

If you've answered yes to any of these questions, then you’ll want to mark your calendars.

You do not want to miss this opportunity to learn valuable information about how and when it is appropriate to use the KX modifier on outpatient therapy claims.

During this free one hour educational event, you'll have the opportunity to learn more about:

• Results of data analysis and excessive use of the KX modifier
• The financial limitations of the therapy caps
• The automatic exception process and when it’s appropriate
• How to comply with Medicare regulations regarding the exception process
• How to determine if the Medicare beneficiary meets the criteria for the exception process
• How to take advantage of self-service tools that can help you make the most of your valuable time

Do you want answers to the questions you have?

To submit your questions in advance of the webcast, just sign-up for the webcast on FCSO University ; select the hyperlink under “Course Activities” and submit your questions.

Please submit your questions no later than May 8.

You can't afford to miss this valuable opportunity to learn and interact directly with your Medicare experts at FCSO.

To participate in this webcast, please register by Monday, May 21.

This program has the prior approval of the American Academy of Professional Coders (AAPC) for 1.0 continuing education unit (CEU).

Granting of prior approval in no way constitutes endorsement by the AAPC of the program content or the program sponsor. Please click here for CEU documentation instructions.

Register now.

Note: If you do not have a training account, please click here to learn how to create one.

Is Skilled Maintenance Therapy for Safety the future of Physical Therapy?

You can be audited by Medicare for providing exercise therapy to a aged person whose legs are 'feeble and unstable'.

They need you.

You're getting them better.

But, your therapy is not 'skilled' and you can't get paid - is that fair?

Skilled Maintenance Therapy for Safety refers to a fairly specific clinical scenario: one wherein the specific techniques may not require ongoing performance and assessment by the physical therapist.

Routine strengthening exercises may not require ongoing performance and assessment by the PT.

Skilled Maintenance Therapy for Safety is new to the Florida Local Coverage Determination for Therapy and Rehabilitative Services. (2/12/2009)

Skilled Maintenance Therapy for Safety Clinical Scenario
(found in the Medicare Benefit Policy Manual, Chapter 15).

Example:

"Where there is an unhealed, unstable fracture, which requires regular exercise to maintain function until the fracture heals, the skills of a therapist would be needed to ensure that the fractured extremity is maintained in proper position and alignment during maintenance range of motion exercises."

A similar case could be made for the large rotator cuff tear under the care of a conservative orthopedic surgeon. A simple therapy protocol often looks like this:

• 1st 6 weeks - PROM only
• 7th-8th week - AAROM only, no shoulder strengthening
• 9th-11th week - AROM only, no shoulder strengthening
• 12th week - begin shoulder strengthening

Is this the future?

How could skilled maintenance therapy for safety ever be good for physical therapists?

In 2010, physical therapists are still bound by silly 'process measures' that mandate 'how' we provide 'skilled therapy':

• -kx modifier
• 8-minute rule
• CPT automatic code edits
• physician certification of the plan of care
• 90 day re-certifications
• discharge notes

These rules stifle creativity and innovation in the clinic. Most of the innovation in physical therapy today is happening in academics, not in the clinic.

Instead of these limited clinical examples consider a patient at risk for falling down - a high proportion of the geriatric population (prevalance: 27-30%).

How might we treat them? Three times per week for four weeks?

Or, intermittently, with no set discharge date?

Shouldn't we get paid to prevent falls, rather than treat the aftermath of the fall?

The Florida LCD (p.22) states the following would raise red flags for a Medicare audit if they were included in a Medicare plan of care.

"...repetitive exercises to maintain gait or maintain strength and endurance, and assisted walking, such as that provided in support for feeble and unstable patients"

Get paid to think like doctors think

There now exists a definite body of literature in support of a 'quantitative approach' to assessing future falls risk.

Factors that predict falls are easily measured and interventions readily assigned. The exercises and functional techniques, after a brief training period, are not that difficult or strenuous. The specific exercises may be repetitive but the quantitative risk assessment (performed weekly) is skilled.

The 'skilled' component is the assessment of future falls risk. The exercises or neuromotor training may NOT be skilled after a short training period. These become repetitive in nature - maintenance.

It's like the dental model. Most of the time I see the hygenist for the cleaning, prophylaxis and exam - the dentist is called in for complex conditions.

I would also recommend the examination of the whole patient - the 'Regional Interdependence Model' - looking for risk factors for adverse events other than falls:

Dysfunction and/or presentation	Test
rotator cuff weakness	Sidelying ER Test
cervical instability	Supine DCF Endurance
untreated episodic vertigo of peripheral origin (BPPV)	history
stiff hip	Prone Hip IR (bubble inc.)
high risk populations like adolescent females playing volleyball and soccer	history
post-partum females with 1st episode LBP	history

Because physical therapists are not dentists we have to document our skilled services - so I designed a template to quantify and record the risk.

The template is available here - along with withering criticism and commentary by physical therapists on the front line of patient care - like you.

Merry Christmas from First Coast Service Options

Physical therapists have been given the 'gift' of maintenance therapy on some patients.

This 'gift' comes wrapped in bureaucratic gobbledeegook but is still an improvement over the dogmatic, no-way, no-how ban on maintenance therapy paid by Medicare that existed prior to February 2, 2009. (note: the FCSO primary geographic jurisdiction is only in the state of Florida)

Skilled Maintenance Therapy for Safety

The specific reference is located on pages 21-22 of the FCSO Local Coverage Determination.

I'll give you an example of the garbled way in which Medicare makes known it's intent:

"If the services required to maintain function involve the use of complex and sophisticated therapy procedures, the judgment and skill of a therapist may be necessary for the safe and effective delivery of such services.

When the patient’s safety is at risk, those reasonable and necessary services shall be covered even if the skills of a therapist are not ordinarily needed to carry out the activities preformed as part of the maintenance program."

The most obvious example in outpatient PT would have us treating patients at risk for, say, falling down in the home - even if the interventions might be construed as low level, 'unskilled' treatments.

However, the LCD goes on to say:

"It is not medically necessary for a therapist to perform or supervise maintenance programs that do not require the professional skills of a therapist.

These situations include: (among others)...repetitive exercises to maintain gait or maintain strength and endurance, and assisted walking, such as that provided in support for feeble and unstable patients."

The LCD seems to contradict itself: If assessment of falls risk is "complex and sophisticated" then they are skilled.

If strengthening/confidence building exercises to prevent falls could be construed as maintenance, then these services seem to fit the new definition of 'Skilled Maintenance Therapy for Safety'.

It even seems appropriate to set goals for these 'feeble and unstable' patients such as 'No reported falls in 30 days' to measure the impact of our intervention.

Come to think of it, if I've assessed falls risk, constructed goals, designed an exercise plan of care and attempted to measure the impact then maybe I should just treat these people.

Does anybody else read this LCD the way I do?

Maybe next year I'll ask Santa for the gift of gobbledeegook.