The American Occupational Therapy Association (AOTA), Bethesda, Md, reports that in January, five national groups filed a class action lawsuit against the Department of Health and Human Services about a Medicare policy that requires a beneficiary to exhibit “demonstrable improvements” to qualify for skilled nursing care and physical, speech, and occupational therapy.
The article notes that the Centers for Medicare & Medicaid Services (CMS) has recently been more aggressive in using the so-called “improvement standard” to deny coverage to beneficiaries in skilled nursing facilities and home health care if continued access to those services will not improve the person’s ability to perform routine activities of daily living.
Representative Joe Courtney (D-Conn) and 16 other lawmakers wrote a letter to CMS in 2010 arguing that the improvement standard is illegal. Private subcontractors process Medicare claims and many of them require improvements in client conditions, and therefore deny coverage to thousands of people every year.
Within a month of each other, two federal district courts ruled that this standard is unsupportable under Medicare statute and regulations and creates high standards for CMS to follow before denying care. The federal judges in the cases examined the improvement standard, also known as “stability presumption” in home health cases, and their rulings now set a high standard for appropriate and timely evidence before CMS can deny coverage or challenge the judgment of a prescribing physician retroactively.
These rulings may be significant to Medicare beneficiaries with chronic conditions such as Alzheimer’s disease or diabetes.
“Although the improvement standard still stands—and is in law—with regard to outpatient therapy, using improvement as the definitive requirement to receive home health or skilled nursing home care has been criticized in recent years as being just too restrictive,” said Christina Metzler, AOTA’s chief public affairs officer, in the article.
The court also said that CMS must look carefully at the record and quoted notes from therapists, which is another reason for occupational therapy practitioners to be very clear and specific in documentation, Metzler said.
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The decisions made in these two court cases reject the “improvement standard” and demonstrate that the current practice of denying coverage for skilled nursing home care and home health services for people with chronic conditions does not comply with Medicare law and regulations. CMS formally claims that the improvement standard does not exist, but for the past 25 years a host of court decisions rejecting the applied standard is evidence of the agency’s reliance on it.
In the article, Metzler urges therapists who have clients and anyone they know who has been affected by this standard, to e-mail AOTA at email@example.com. “We will not tolerate CMS denying care to occupational therapy clients based on these standards,” Metzler said.