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This is Part Three of a ten-part CMA Issue Brief Series examining the growing crisis in access to Medicare home health coverage and necessary care, and outlining the Center for Medicare Advocacy’s work to address these issues. We invite you to follow this Issue Brief Series and submit Medicare home health stories to the Center at http://www.medicareadvocacy.org/submit-your-home-health-access-story/.


This is Part Three of a ten-part CMA Issue Brief Series examining the growing crisis in access to Medicare home health coverage and necessary care, and outlining the Center for Medicare Advocacy’s work to address these issues. We invite you to follow this Issue Brief Series and submit Medicare home health stories to the Center at http://www.medicareadvocacy.org/submit-your-home-health-access-story/

CMA Issue Brief Series: Medicare Home Health Care Crisis

  1. Overview – The Crisis in Medicare Home Health Coverage and Access to Care
  2. Medicare Home Health Coverage, Legally Defined
  3. Medicare Coverage for Home Care Is Based On a Need For Skilled Care – Improvement Is Not Required
  4. Misleading and Inaccurate CMS Home Care Publications
  5. The Home Care Crisis: An Elder Justice Issue
  6. Beneficiary Protections Are Lacking In Home Health Provider Conditions Of Participation
  7. Barriers to Home Care Created by CMS Payment, Quality Measurement, and Fraud Investigation Systems
  8. Proposed CMS Systems Will Worsen the Home Care Crisis
  9. A Further Examination of the Home Care Crisis: Published Articles and Statistical Trends
  10. Strategic Plans to Address and Resolve the Medicare Home Care Crisis

Medicare recognizes the need for skilled care and related services for chronic and long-term conditions to maintain an individual’s condition.  For home care to be covered, the beneficiary must meet the basic qualifying criteria and require skilled services, which may be designed to:

  • Maintain the status of an individual's condition; or
  • Slow or prevent the deterioration of a condition; or
  • Improve the individual's condition

Skilled care is care which must be provided by, or under the supervision of, a qualified professional to be safe and effective. (Qualified professional includes nurses, physical or occupational therapists or speech language pathologists.)

The Law

By law, Medicare decisions should be based on whether the patient needs skilled care, whether to maintain or improve the individual’s condition, and meets the other qualifying criteria for home health coverage. For example, the beneficiary must be confined to home – often known as “homebound” – and have a doctor’s Plan of Care for home care, to be provided by a Medicare-certified home health agency.

  • Note: “Homebound” does not mean bedbound, or that one can never leave home. Rather, it means the individual has a normal inability to leave home, or cannot leave without a taxing effort or assistance, or leaving alone is contra-indicated (for example, the individual has dementia). Individuals can leave home for medical appointments, religious services, adult day care, and occasional outings and still meet the homebound definition.

Medicare should be equally available whether the skilled care is to maintain or to improve the patient’s underlying condition.  Long-standing federal regulation included this coverage rule, but it was undercut by unfair denials and policies for decades. Only recently, as a result of the Center for Medicare Advocacy’s Jimmo v. Sebelius lawsuit, has CMS acknowledged, and started to educate Medicare stakeholders, that “improvement” is not necessary for Medicare coverage. “Restoration potential is not the deciding factor in determining whether skilled care is required. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.”

  • 42 C.F.R. § 409.32(c)

The settlement reached in Jimmo v. Sebelius resulted in CMS revising its Medicare policy manuals to properly reflect the law. New language was added to the Medicare home health manual to clarify that skilled maintenance nursing and therapies are covered, including the following:

“… Coverage of skilled nursing care or therapy to perform a maintenance program does not turn on the presences or absence of a patient’s potential for improvement from the nursing care or therapy, but rather on the patient’s need for skilled care. Skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, to prevent or slow further deterioration of the patient’s condition.”

  • Medicare Benefit Policy Manual (MBPM), Chapter 7, 20.1.2 (Home Health)

“… Skilled Nursing services are covered where such skilled nursing services are necessary to maintain the patient’s current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided. …”

  • Medicare Beneficiary Policy Manual (MBPM), Ch. 7, 40.1.1

Maintenance Therapy – Where services that are required to maintain the patient’s current function or to prevent or slow further deterioration are of such complexity and sophistication that the skills of a qualified therapist are required to perform the procedure safely and effectively, the services would be covered physical therapy services. …”

  • Medicare Beneficiary Policy Manual (MBPM,) Ch. 7, 40.2.2.E

Emphasis added

Conclusion

In summary, Medicare should never use “rules of thumb” such as an illegal Improvement Standard to deny coverage. Rather,“[a] determination of whether skilled nursing care is reasonable and necessary must be based solely upon the beneficiary's unique condition and individual needs, without regard to whether the illness or injury is acute, chronic, terminal, or expected to last a long time.” 42 CFR §409.44(b)(3)(iii)

Medicare, including Medicare Advantage plans, should look at the individual's total, overall condition as set forth in the medical record to determine if skilled care is needed and coverage standards are met.  Medicare coverage should not be denied simply because an individual's condition is chronic or expected to last a long time. "Restoration potential" is not necessary – skilled care to maintain an individual's condition can be covered.

Regrettably, we know people with long-term conditions still face unfair barriers to Medicare and necessary home care. If coverage appears to be denied because an individual’s condition is long-standing and skilled care is needed to maintain function or slow decline, contact the Center for Medicare Advocacy at improvement@MedicareAdvocacy.org.

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