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  1. Introduction
  2. How to Use this Packet
  3. Quick Screen for Medicare Coverage of Home Health Care
  4. A Brief Summary of Medicare Coverage for Home Health Care and the Improvement Myth
  5. General Description of a Medicare Home Health Care Expedited Appeal
  6. Pertinent Law
  7. Important Information about Medicare Policies and Guidelines

Introduction

Dear Medicare Patient:

The Center for Medicare Advocacy has produced this packet to help you understand Medicare coverage and how to file an appeal.

Medicare is the national health insurance program to which many disabled individuals and most older people are entitled under the Social Security Act.  All too often, Medicare claims are erroneously denied.  It is your right to appeal an unfair denial; we urge you to do so.

If you have any questions you can contact the Center for Medicare Advocacy at (860) 456-7790.


How to Use This Packet

We’ve organized this packet so that it provides you with the information needed to successfully appeal a home health agency’s Medicare denial.  We suggest you take the following steps:

  1. Read the Quick Screen for Medicare Coverage of Home Health Care to see if your situation seems to be coverable by Medicare and warrants an appeal.  (For more information, read the Brief Summary of Medicare Coverage for Home Health Care and the Improvement Standard.)
  2. If you decide to appeal, read the General Description of a Home Health Care Expedited Appeal also included in this packet.
  3. When you receive a notice from the agency letting you know that Medicare coverage will end, call the 1-800 number provided on the notice by noon of the next calendar day.  It’s very important that you do not miss this step or deadline.
  4. Ask the home health agency for a copy of the patient’s medical records.  Review the records for helpful information and share that information with the patient’s attending physician.
  5. Ask the attending physician to submit a statement to go with the appeal indicating that the home health agency’s failure to continue home health care will place the beneficiary’s health at significant risk.
  6. If you have questions, contact the Center for Medicare Advocacy at 860-456-7790.

Quick Screen:
When Should Medicare Coverage Be Available

For Home Health Care

Home health claims are suitable for Medicare coverage, and appeal if they have been denied, if they meet the following criteria:

  1. A physician has signed or will sign a care plan.
  2. The patient is homebound.  This criterion is met if leaving home requires a considerable and taxing effort which may be shown by the patient needing personal assistance, or the help of a wheelchair or crutches, etc.  Occasional but infrequent "walks around the block" are allowable.  Attendance at an adult day center or religious services is not an automatic bar to meeting the homebound requirement.
  3. The patient needs skilled nursing care on an intermittent basis (from as much as every day for recurring periods of 21 days – if there is a predictable end to the need for daily care – to as little as once every 60 days) or physical or speech therapy.
  4. The care must be provided by, or under arrangements with, a Medicare-certified provider.

Coverable Home Health Services

If the triggering conditions described above are met, the beneficiary is entitled to Medicare coverage for home health services.  There is no coinsurance or deductible.  Home health services include:

  • Part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse;
  • Physical, occupational, or speech therapy;
  • Medical social services under the direction of a physician and;
  • To the extent permitted in regulations, part-time or intermittent services of a home health aide.

ADDITIONAL TIPS:

  1. Medicare coverage should not be denied simply because the patient’s condition is "chronic," “stable,” or unlikely to improve.  "Restorative potential" is not necessary.
  2. Resist arbitrary caps on coverage imposed by the intermediary.  For example, do not accept provider or intermediary assertions that aide services in excess of one visit per day are not covered, or that daily nursing visits can never be covered.
  3. There is no legal limit to the duration of the Medicare home health benefit.  Medicare coverage is available for necessary home care even if it is to extend over a long period of time.
  4. The doctor is the patient’s most important ally.  If it appears that Medicare coverage will be denied, ask the doctor to help demonstrate that the standards above are met.  Home care services should not be ended or reduced unless it has been ordered by the doctor.
  5. Prior to the discontinuance of Medicare covered services the home health agency must issue a written notice of non-coverage.  If you disagree with the discharge, exercise the appeal rights described on the written notice.

A Brief Summary of Medicare Coverge for Home Health Care and the Improvement Myth

Medicare is the national health insurance program to which all Social Security recipients who are either at least 65 years old or are permanently disabled are entitled.  In addition, individuals receiving Railroad Retirement benefits and individuals with End Stage Renal Disease (ESRD) or Amyotrophic Lateral  Sclerosis (ALS) are eligible to receive Medicare benefits.  Medicare was established in 1965 by Title 18 of the Social Security Act.  42 USC §1395 et seq.

Private Medicare plans are known as "Medicare Advantage" (MA) plans.  Although the Medicare Advantage system is different from the original Medicare program, Medicare Advantage plan benefits are required to be identical to, or more generous than, those in the original program.

The Medicare "Improvement Myth"

There is a long standing myth that Medicare coverage is not available for beneficiaries who have an underlying condition from which they will not improve. This is not true.  In fact, the notion of "improvement" is only mentioned once in the Medicare Act – and it is not about coverage for home health care. 

This issue was finally resolved in federal court in Jimmo vs. Sebelius, (D.VT 1/24/2013).  In Jimmo the judge approved a settlement stating that Medicare coverage for home health care does not depend on the individual’s potential for improvement, but rather on his or her need for skilled care – which can be to maintain or slow deterioration of the individual’s condition. 

As an overarching principle, the Medicare Act states that no payment will be made except for items and services that are "reasonable and necessary for the diagnosis or treatment of an illness or injury, or to improve the functioning of a malformed body member."  42 USC  §1395y(a)(1)(A).  While it is not clear what a "malformed body member" is, clearly this language does not limit Medicare coverage only to services, diagnoses or treatments that will improve illness or injury. Yet, in practice, beneficiaries are often denied coverage on the grounds that they are not likely to improve, or are "stable" or "chronic," or require long-term care, or "maintenance services only."  These are not legitimate reasons for Medicare denials.  42 CFR §409.44(b)(3)(iii); 42 CFR §409.44(c)(2)(iii)(B) or (C).

Medicare Coverage for Home Health Care

Medicare coverage can be available for long term home health care if the qualifying criteria are met. There is no statutory or regulatory limit on the length of time for which home health coverage is available.  Further, Medicare covers home health services in full, with no required

deductible or co-payments from the beneficiary. Services must be reasonable and medically necessary and the following criteria must be met:

  1. A physician has signed or will sign a plan of care;
  2. The patient is or will be "homebound.”  This criterion is met if leaving home requires a considerable and taxing effort which may be shown by the patient needing personal assistance, or the help of a wheelchair or crutches, etc.  Occasional but infrequent "walks around the block" are allowable.
    42 USC §1395f(a)(2)(C); 42 USC §1395f (a)(8)
    CMS Policy Manual 100-02, Chapter 7, §30.1.1
  3. The patient needs or will need physical or speech therapy, or intermittent skilled nursing (from once a day for periods of 21 days at a time if there is a predictable end to the need for daily nursing care, to once every 60 days).
    42 USC §1395f(a)(2)(C); 42 USC §1395x(m); 42 CFR §409.42(c)(1)
    CMS Policy Manual 100-02, Chapter 7, §40.1.3
  4. The home health care is provided by, or under arrangement with, a Medicare-certified provider.
    42 USC §1395f(a)(2)(C); 42 USC §1395n(a)(2)(A); 42 USC §1395x(m); 42 CFR §409.42(e)

If the triggering conditions described above are met, the beneficiary is entitled to Medicare coverage for home health services.  Home health services include:

  • Part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse
    For information about skilled nursing see, 42 CFR §409.33; 42 CFR §409.44(b)
  • Physical, occupational, or speech therapy
    For information about skilled therapy see, 42 CFR §409.33; 42 CFR §409.44(c)
  • Medical social services under the direction of a physician; and
  • To the extent permitted in regulations, part-time or intermittent services of a home health aide.
    42 USC §1395x(m)(1) and (4)

Unfortunately, Medicare coverage is often denied to individuals who qualify under the law. In particular, beneficiaries are often denied coverage because they have certain chronic conditions such as Alzheimer's disease, Parkinson's disease, and multiple sclerosis, or because they need nursing or therapy "only" to maintain their condition. These are not legitimate reasons for Medicare denials.
42 CFR §409.44(a)

The question to ask is does the patient meet the qualifying criteria listed above and need skilled nursing and/or therapy – NOT does the patient have a particular disease or will s/he recover.

Important Advocacy Tips

  1. Each person should get an individualized assessment regarding Medicare coverage based on his/her unique medical condition and need for care.
    42 CFR §409.44(a); 42 CFR §409.44(b)(3)(iii)
  2. There is no legal limit to the duration of the Medicare home health benefit.  Medicare coverage is available for necessary home care even if it is expected to last a long period of time.
    42 CFR §409.44(b)(3)(iii)
  3. The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Coverage can be available even if the illness or injury is chronic, terminal, or the patient’s condition is stable.
    42 CFR §409.32(c); 42 CFR §409.44(b)(3)(iii); 42 §CFR 409.44 (c)(2)(iii)(C);
  4. CMS Policy Manual 100-02, Chapter 8, §30.2.2 and 100-02, Chapter 7, §40.1.1
    Medicare recognizes that skilled care can be required to maintain an individual’s condition or functioning, or to slow or prevent deterioration, including physical therapy to maintain the individual’s condition or function.
    42 CFR §409.42(c) and 42 CFR§409.44(c)(2)(C)(iii)
  5. The doctor is the patient's most important ally. Ask the doctor to help demonstrate that the standards described above are met. In particular, ask the individual’s doctor to state in writing that the individual is homebound and why the skilled care and other services are required.

If a home health agency or Medicare Advantage plan says Medicare coverage is not available and the patient seems to satisfy the criteria above, ask the home care agency to submit a claim for a formal Medicare coverage determination.  The agency must submit a claim if the patient or representative requests.

Conclusion

Medicare coverage for home health care can be a long-term benefit if the individual meets the qualifying criteria. Unfortunately, however, coverage is often erroneously denied for individuals  with chronic conditions, for people who are not improving, who need services for a long time and/ or to maintain their condition.

Medicare can be available for items and services needed to maintain the person's condition or to arrest or retard further deterioration. It is not necessary for the individual’s underlying condition to improve to qualify for Medicare coverage! The Medicare program has an appeal system to contest such denials.  Beneficiaries and their advocates should use this system to appeal Medicare determinations that unfairly deny or limit coverage.

For more information about Medicare coverage, appeals, and related topics see our Medicare Basics and Coverage and Appeals pages.


Medicare Expedited Appeal
General Description of a Home Health Care Appeal

Typical Scenario:  You are a Medicare beneficiary who is receiving medical care from a home health care provider.  Medicare is paying for this care because some of your care is provided by a skilled professional (a nurse or a physical, occupational or speech therapist).  You are told that the care will be discontinued because you have “plateaued,” returned to “baseline,” or require “maintenance only” services.  You believe you continue to need and will continue to benefit from the provided skilled care. 

Action Steps:  Medicare is an insurance program; it only pays for care that has been provided, it does not pay for care that should have been provided.  In other words, once your care is discontinued, it will be essentially impossible to remedy the problem with a Medicare appeal.  So the first order of business is to keep the care in place.  The best way to keep care in place is an expedited (fast) appeal with support from your attending physician (the doctor who ordered and is overseeing your home health care).  Review the Quick Screen for home health care, included in this packet, to see if your care seems to qualify for Medicare coverage.  Remember that skilled care can be covered when it is necessary to maintain or improve your condition, not just when improvement is expected.

1.  How to Do an Expedited Appeal

Beneficiaries in traditional Medicare have a legal right to an expedited appeal when home health providers plan to discharge them or discontinue Medicare-covered skilled care.  This right is triggered when the home health agency plans to stop providing skilled therapy and/ or nursing.  It can also be triggered if the provider no longer believes the beneficiary is homebound.  It is not triggered when the provider lowers the frequency of skilled care.  For instance, there is no right to an expedited appeal if physical therapy is decreased from three times per week to one time per week. 

The Medicare rules require that the home health provider give you (or your representative) a standardized notice at least two days prior to the last day of covered care or in the event that the span of time between visits exceeds two days, the provider must give the notice no later than the next to last time services are to be furnished.  This standardized notice is called a “Notice of Medicare Provider Non-Coverage.”  It is also referred to as a “generic notice.”  The notice must include the date that coverage of care ends, the date you will become financially responsible for continued care from the home health care provider, and a description of your right to an expedited determination.  To prevent the discontinuation of Medicare covered care, take the following action steps.

Step One

Read the standardized (generic) notice.  It will contain the telephone number for your Medicare Quality Improvement Organization (QIO).  To start the expedited appeal, you or your representative must contact the QIO by no later than noon of the calendar day following receipt of the standardized notice.  You can do this in writing or by telephone.  Once the contact is made, the home health provider should give you a more specific notice which will include a detailed explanation as to why it believes the Medicare covered care should end, a description of any applicable Medicare coverage rules and information about how to obtain them, and other facts specific to your case.

After you contact the QIO, it is supposed to make its decision about Medicare coverage within 72 hours.  Prior to making a decision, the QIO must review your medical records, give the home health care provider an opportunity to explain why it believes the discontinuation of care is appropriate, and get your opinion.  Legally, the home health care provider must prove its decision to discharge you from covered care is correct.  However, you should be prepared to explain to the QIO why it is you continue to need ongoing care.  For instance, you may continue to need physical therapy because your home has stairs and you have not yet regained the strength and coordination necessary to climb stairs.

Step Two

While the QIO is gathering information for its decision, gather support for your case.  In order to win the appeal, you will need a statement from your attending physician indicating that if your care is discontinued, your health will be placed at significant risk.  The physician should explain in writing why your health will be jeopardized if your care is discontinued.  Have the physician fax this statement to the QIO.  Additionally, ask your attending physician to make him or herself available to the QIO by telephone to answer questions.

Step Three

You have a legal right to review your medical record.  At your request or the request of your representative, the home health care provider must give you a copy of or access to any documentation it sends to the QIO, including records of any information provided by telephone.  The provider may, however, charge you the cost of copying and sending documents.  Some states, including Connecticut and Massachusetts, prohibit providers from billing patients for copies of their medical records when they are appealing Medicare denials of coverage.  The provider must honor your request by no later than close of business of the first day after the material is requested.  This information can be very helpful in supporting the medical need for the continuation of your care and in assisting your attending physician with understanding your current medical condition.  If you get these records, be sure to give a copy to your attending physician.

If the QIO agrees with you, you will continue to get your Medicare covered care.  However, if the QIO agrees with the home health care provider, you will be financially responsible for your continued care from the home health care provider.  You do, however, have the right to another appeal, an “expedited reconsideration.”  Expedited reconsiderations are performed by an organization called the Qualified Independent Contractor (QIC).  If the QIO decided that Medicare coverage should end, it should give you the telephone number for the QIC.

Step Four

If the QIO ruled against you and you wish to continue your appeal, you or your representative must call the QIC no later than noon of the calendar day following notification by the QIO of its decision.

Ordinarily, the QIC must tell you its decision within 72 hours of receipt of your call and any medical or other records needed for an expedited reconsideration.  You have the right to extend this period to up to 14 days so that you can gather medical records and prepare your argument. 

Step Five

If you did not get your medical records during the QIO review, you can get them at this stage.  You can request them from the QIO who must send you a copy of or give you access to any documentation it sent to the QIC.  The QIO may charge for the cost of duplicating documents and for the cost of delivery.  The QIO must comply with your request no later than close of business of the first day after your request for the documents.  If you were not able to submit support from your attending physician to the QIO, at this second stage of the appeal process, it is a good idea to use the 14 day extension to get and submit that support.  If you get your medical records, be sure and share them with your doctor.

If the QIC agrees with you, you will continue to get your Medicare covered care and it will be covered by Medicare.  In the event that the QIC believes that your care is no longer medically reasonable and necessary, then you have the right to an Administrative Law Judge (ALJ) hearing.  The QIC should send you a written copy of its decision with information about how to request an ALJ hearing.

Step Six

ALJ hearings and decisions are not expedited.  This means that you may have to wait a long time (several months) before you can have a hearing.  You must request the hearing within 60 days of notice from the QIC that it has denied Medicare coverage for your care.  The ALJ is supposed to issue a decision within 90 days of receipt of the request for hearing.  Unfortunately, if you started your appeal to keep nursing or therapy services in place, and the care has already stopped, this level of appeal has little value.  This is because it will probably be several months before the judge hears your case and issues a decision and because even if the judge agrees with you that care should not have been discontinued, you may have gone a long time without covered services.  Additionally, there will probably be legal hurdles preventing the ALJ from authorizing additional coverage of your care.

If you request an ALJ hearing, and continue to get care from the home health care provider, you are financially responsible for the ongoing care until the ALJ writes a favorable decision.  If the ALJ issues an unfavorable decision, you will remain financially responsible for the continued care.  The ALJ’s decision will tell you how to file the last administrative appeal with the Medicare Appeals Council. 

2.  Understanding Skilled Care

Skilled care is care that is so inherently complex that it must be provided or supervised by a skilled professional.  Unfortunately, Medicare does not cover home health care when it is only “custodial” and no skilled nursing or therapy services are required.  Examples of custodial care include the administration of medications or assisting a patient with bathing or toileting.

3.  Understanding the Homebound Requirement

A Medicare beneficiary does not need to be bedbound to be eligible for Medicare coverage of home health care.  Furthermore, being homebound does not mean that the beneficiary never leaves home.  As a matter of fact, beneficiaries can leave home as frequently as needed to attend: religious services; adult day care where they are participating in therapeutic, psychosocial, or medical treatments; or medical appointments.  Medicare beneficiaries are considered to be homebound if leaving home for social reasons or errands is difficult and thus happens infrequently or only for short periods of time.  Absences from the home for special occasions such as family celebrations or occasional outings should not disqualify Medicare beneficiaries from Medicare home health care coverage.

4.  Conclusion

The best way to keep Medicare covered home health care in place is to exercise your expedited appeal rights.  You are most likely to succeed if you have the support of your attending physician.  If you have questions contact the Center for Medicare Advocacy’s Connecticut office at (860) 456-7790.


Medicare Home Health Coverage
Law and Regulations

The “Homebound” Criteria

 42 USC § 1395f(a)(8) and 1395n(a)(2)(f)

…an individual shall be considered to be “confined to his home” if the individual has a condition, due to an illness or injury, that restricts the ability of the individual to leave his or her home except with the assistance of another individual or the aid of a supportive device (such as crutches, a cane, a wheelchair, or a walker), or if the individual has a condition such that leaving his or her home is medically contraindicated. While an individual does not have to be bedridden to be considered “confined to his home”, the condition of the individual should be such that there exists a normal inability to leave home and that leaving home requires a considerable and taxing effort by the individual. Any absence of an individual from the home attributable to the need to receive health care treatment, including regular absences for the purpose of participating in therapeutic, psychosocial, or medical treatment in an adult day-care program that is licensed or certified by a State, or accredited, to furnish adult day- care services in the State shall not disqualify an individual from being considered to be “confined to his home”. Any other absence of an individual from the home shall not so disqualify an individual if the absence is of infrequent or of relatively short duration. For purposes of the preceding sentence, any absence for the purpose of attending a religious service shall be deemed to be an absence of infrequent or short duration.

42 C.F.R. § 409.41 Requirement for payment.

In order for home health services to qualify for payment under the Medicare program the following requirements must be met:

(a) The services must be furnished to an eligible beneficiary by, or under arrangements with, an HHA that–

(1) Meets the conditions of participation for HHAs at part 484 of this chapter; and

(2) Has in effect a Medicare provider agreement as described in part 489, subparts A, B, C, D, and E of this chapter.

(b) The physician certification and recertification requirements for home health services described in § 424.22.

(c) All requirements contained in §§ 409.42 through 409.47.

42 C.F.R. § 409.42 Beneficiary Qualifications for Coverage of Services.

(1) Intermittent skilled nursing services that meet the criteria for skilled services and the need for skilled services found in § 409.32. (Also see § 409.33(a) and (b) for a description of examples of skilled nursing and rehabilitation services.) These criteria are subject to the following limitations in the home health setting:

(i) In the home health setting, management and evaluation of a patient care plan is considered a reasonable and necessary skilled service when underlying conditions or complications are such that only a registered nurse can ensure that essential non-skilled care is achieving its purpose. To be considered a skilled service, the complexity of the necessary unskilled services that are a necessary part of the medical treatment must require the involvement of licensed nurses to promote the patient's recovery and medical safety in view of the overall condition. Where nursing visits are not needed to observe and assess the effects of the non-skilled services being provided to treat the illness or injury, skilled nursing care would not be considered reasonable and necessary, and the management and evaluation of the care plan would not be considered a skilled service. In some cases, the condition of the patient may cause a service that would originally be considered unskilled to be considered a skilled nursing service. This would occur when the patient's underlying condition or complication requires that only a registered nurse can ensure that essential non-skilled care is achieving its purpose. The registered nurse is ensuring that service is safely and effectively performed. However, a service is not considered a skilled nursing service merely because it is performed by or under the supervision of a licensed nurse. Where a service can be safely and effectively performed (or self administered) by non-licensed staff without the direct supervision of a nurse, the service cannot be regarded as a skilled service even if a nurse actually provides the service.

(ii) In the home health setting, skilled education services are no longer needed if it becomes apparent, after a reasonable period of time, that the patient, family, or caregiver could not or would not be trained. Further teaching and training would cease to be reasonable and necessary in this case, and would cease to be considered a skilled service. Notwithstanding that the teaching or training was unsuccessful, the services for teaching and training would be considered to be reasonable and necessary prior to the point that it became apparent that the teaching or training was unsuccessful, as long as such services were appropriate to the patient's illness, functional loss, or injury.

(2) Physical therapy services that meet the requirements of § 409.44(c).

(3) Speech-language pathology services that meet the requirements of § 409.44(c).

(4) Occupational therapy services in the current and subsequent certification periods (subsequent adjacent episodes) that meet the requirements of § 409.44(c) initially qualify for home health coverage as a dependent service as defined in § 409.44(d) if the beneficiary's eligibility for home health services has been established by virtue of a prior need for intermittent skilled nursing care, speech-language pathology services, or physical therapy in the current or prior certification period. Subsequent to an initial covered occupational therapy service, continuing occupational therapy services which meet the requirements of § 409.44(c) are considered to be qualifying services.

(d) Under a plan of care. The beneficiary must be under a plan of care that meets the requirements for plans of care specified in § 409.43.

(e) By whom the services must be furnished. The home health services must be furnished by, or under arrangements made by, a participating HHA.

42 C.F.R. § 409.43 Plan of Care Requirements

(a) Contents. The plan of care must contain those items listed in § 484.18(a) of this chapter that specify the standards relating to a plan of care that an HHA must meet in order to participate in the Medicare program.

(b) Physician's orders. The physician's orders for services in the plan of care must specify the medical treatments to be furnished as well as the type of home health discipline that will furnish the ordered services and at what frequency the services will be furnished. Orders for services to be provided “as needed” or “PRN” must be accompanied by a description of the beneficiary's medical signs and symptoms that would occasion the visit and a specific limit on the number of those visits to be made under the order before an additional physician order would have to be obtained. Orders for care may indicate a specific range in frequency of visits to ensure that the most appropriate level of services is furnished. If a range of visits is ordered, the upper limit of the range is considered the specific frequency.

(c) Physician signature.

(1) Request for Anticipated payment signature requirements. If the physician signed plan of care is not available at the time the HHA requests an anticipated payment of the initial percentage prospective payment in accordance with § 484.205, the request for the anticipated payment must be based on–

(i) A physician's verbal order that–

(A) Is recorded in the plan of care;

(B) Includes a description of the patient's condition and the services to be provided by the home health agency;

(C) Includes an attestation (relating to the physician's orders and the date received) signed and dated by the registered nurse or qualified therapist (as defined in 42 CFR 484.4) responsible for furnishing or supervising the ordered service in the plan of care; and

(D) Is copied into the plan of care and the plan of care is immediately submitted to the physician; or

(ii) A referral prescribing detailed orders for the services to be rendered that is signed and dated by a physician.

(2) Reduction or disapproval of anticipated payment requests. CMS has the authority to reduce or disapprove requests for anticipated payments in situations when protecting Medicare program integrity warrants this action. Since the request for anticipated payment is based on verbal orders as specified in paragraph (c)(1)(i) and/or a prescribing referral as specified in (c)(1)(ii) of this section and is not a Medicare claim for purposes of the Act (although it is a “claim” for purposes of Federal, civil, criminal, and administrative law enforcement authorities, including but not limited to the Civil Monetary Penalties Law (as defined in 42 U.S.C.  1320a-7a(i)(2)), the Civil

False Claims Act (as defined in 31 U.S.C.  3729(c)), and the Criminal False Claims Act (18 U.S.C. 287)), the request for anticipated payment will be canceled and recovered unless the claim is submitted within the greater of 60 days from the end of the episode or 60 days from the issuance of the request for anticipated payment.

(3) Final percentage payment signature requirements. The plan of care must be signed and dated-

(i) By a physician as described who meets the certification and recertification requirements of § 424.22 of this chapter; and

(ii) Before the claim for each episode for services is submitted for the final percentage prospective payment.

(4) Changes to the plan of care signature requirements. Any changes in the plan must be signed and dated by a physician.

(d) Oral (verbal) orders. If any services are provided based on a physician's oral orders, the orders must be put in writing and be signed and dated with the date of receipt by the registered nurse or qualified therapist (as defined in § 484.4 of this chapter) responsible for furnishing or supervising the ordered services. Oral orders may only be accepted by personnel authorized to do so by applicable State and Federal laws and regulations as well as by the HHA's internal policies. The oral orders must also be countersigned and dated by the physician before the HHA bills for the care.

(e) Frequency of review.

(1) The plan of care must be reviewed by the physician (as specified in § 409.42(b)) in consultation with agency professional personnel at least every 60 days or more frequently when there is a–

(i) Beneficiary elected transfer;

(ii) Significant change in condition; or

(iii) Discharge and return to the same HHA during the 60–day episode.

(2) Each review of a beneficiary's plan of care must contain the signature of the physician who reviewed it and the date of review.

(f) Termination of the plan of care. The plan of care is considered to be terminated if the beneficiary does not receive at least one covered skilled nursing, physical therapy, speech-language pathology services, or occupational therapy visit in a 60–day period unless the physician documents that the interval without such care is appropriate to the treatment of the beneficiary's illness or injury.

42 C.F.R. § 409.44 Skilled services requirements

(a) General. The intermediary's decision on whether care is reasonable and necessary is based on information provided on the forms and in the medical record concerning the unique medical condition of the individual beneficiary. A coverage denial is not made solely on the basis of the reviewer's general inferences about patients with similar diagnoses or on data related to utilization generally but is based upon objective clinical evidence regarding the beneficiary's individual need for care.

(b) Skilled nursing care.

(1) Skilled nursing care consists of those services that must, under State law, be performed by a registered nurse, or practical (vocational) nurse, as defined in § 484.4 of this chapter, meet the criteria for skilled nursing services specified in § 409.32, and meet the qualifications for coverage of skilled services specified in § 409.42(c). See § 409.33 and (b) for a description of skilled nursing services and examples of them.

(i) In determining whether a service requires the skill of a licensed nurse, consideration must be given to the inherent complexity of the service, the condition of the beneficiary, and accepted standards of medical and nursing practice.

(ii) If the nature of a service is such that it can safely and effectively be performed by the average nonmedical person without direct supervision of a licensed nurse, the service cannot be regarded as a skilled nursing service.

(iii) The fact that a skilled nursing service can be or is taught to the beneficiary or to the beneficiary's family or friends does not negate the skilled aspect of the service when performed by the nurse.

(iv) If the service could be performed by the average nonmedical person, the absence of a competent person to perform it does not cause it to be a skilled nursing service.

(2) The skilled nursing care must be provided on a part-time or intermittent basis.

(3) The skilled nursing services must be reasonable and necessary for the treatment of the illness or injury.

(i) To be considered reasonable and necessary, the services must be consistent with the nature and severity of the beneficiary's illness or injury, his or her particular medical needs, and accepted standards of medical and nursing practice.

(ii) The skilled nursing care provided to the beneficiary must be reasonable within the context of the beneficiary's condition.

(iii) The 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.

(c) Physical therapy, speech-language pathology services, and occupational therapy. To be covered, physical therapy, speech-language pathology services, and occupational therapy must satisfy the criteria in paragraphs (c)(1) and (2) of this section.

(1) Speech-language pathology services and physical or occupational therapy services must relate directly and specifically to a treatment regimen (established by the physician, after any needed consultation with the qualified therapist) that is designed to treat the beneficiary's illness or injury. Services related to activities for the general physical welfare of beneficiaries (for example, exercises to promote overall fitness) do not constitute physical therapy, occupational therapy, or speech-language pathology services for Medicare purposes. To be covered by Medicare, all of the requirements apply as follows:

(i) The patient's plan of care must describe a course of therapy treatment and therapy goals which are consistent with the evaluation of the patient's function, and both must be included in the clinical record. The therapy goals must be established by a qualified therapist in conjunction with the physician.

(ii) The patient's clinical record must include documentation describing how the course of therapy treatment for the patient's illness or injury is in accordance with accepted professional standards of clinical practice.

(iii) Therapy treatment goals described in the plan of care must be measurable, and must pertain directly to the patient's illness or injury, and the patient's resultant impairments.

(iv) The patient's clinical record must demonstrate that the method used to assess a patient's function included objective measurements of function in accordance with accepted professional standards of clinical practice enabling comparison of successive measurements to determine the effectiveness of therapy goals. Such objective measurements would be made by the qualified therapist using measurements which assess activities of daily living that may include but are not limited to eating, swallowing, bathing, dressing, toileting, walking, climbing stairs, or using assistive devices, and mental and cognitive factors.

(2) Physical and occupational therapy and speech-language pathology services must be reasonable and necessary. To be considered reasonable and necessary, the following conditions must be met:

(i) The services must be considered under accepted standards of professional clinical practice, to be a specific, safe, and effective treatment for the beneficiary's condition. Each of the following requirements must also be met:

(A) The patient's function must be initially assessed and periodically reassessed by a qualified therapist, of the corresponding discipline for the type of therapy being provided, using a method which would include objective measurement as described in § 409.44(c)(1)(iv). If more than one discipline of therapy is being provided, a qualified therapist from each of the disciplines must perform the assessment and periodic reassessments. The measurement results and corresponding effectiveness of the therapy, or lack thereof, must be documented in the clinical record.

(B) At least every 30 days a qualified therapist (instead of an assistant) must provide the needed therapy service and functionally reassess the patient in accordance with § 409.44(c)(2)(i)(A). Where more than one discipline of therapy is being provided, a qualified therapist from each of the disciplines must provide the needed therapy service and functionally reassess the patient in accordance with § 409.44(c)(2)(i)(A) at least every 30 days.

(C) If a patient is expected to require 13 therapy visits, a qualified therapist (instead of an assistant) must provide all of the therapy services on the 13th therapy visit and functionally reassess the patient in accordance with § 409.44(c)(2)(i)(A). Exceptions to this requirement are as follows:

(1) The qualified therapist's visit can occur after the 10th therapy visit but no later than the 13th therapy visit when the patient resides in a rural area or when documented circumstances outside the control of the therapist prevent the qualified therapist's visit at the 13th therapy visit.

(2) Where more than one discipline of therapy is being provided, the qualified therapist from each discipline must provide all of the therapy services and functionally reassess the patient in accordance with paragraph (c)(2)(i)(A) of this section during the visit associated with that discipline which is scheduled to occur after the 10th therapy visit but no later than the 13th therapy visit per the plan of care. In instances where the frequency of a particular discipline, as ordered by a physician, does not make it feasible for the reassessment to occur during the specified timeframes without providing an extra unnecessary visit or delaying a visit, then it is acceptable for the qualified therapist from that discipline to provide all of the therapy and functionally reassess the patient during the visit associated with that discipline that is scheduled to occur closest to the 14th Medicare-covered therapy visit, but no later than the 13th Medicare-covered therapy visit.

(D) If a patient is expected to require 19 therapy visits, a qualified therapist (instead of an assistant) must provide all of the therapy services on the 19th therapy visit and functionally reassess the patient in accordance with § 409.44(c)(2)(A). Exceptions to this requirement are as follows:

(1) This required qualified therapist service can instead occur after the 16th therapy visit but no later than the 19th therapy visit when the patient resides in a rural area or documented circumstances outside the control of the therapist preclude the qualified therapist service at the 19th therapy visit.

(2) Where more than one discipline of therapy is being provided, the qualified therapist from each discipline must provide all of the therapy services and functionally reassess the patient in

accordance with paragraph (c)(2)(i)(A) of this section during the visit associated with that discipline which is schedule to occur after the 16th therapy visit but no later than the 19th therapy visit per the plan of care. In instances where the frequency of a particular discipline, as ordered by a physician, does not make it feasible for the reassessment to occur during the specified timeframes without providing an extra, unnecessary visit or delaying a visit, then it is acceptable for the qualified therapist from that discipline to provide all of the therapy and functionally reassess the patient during the visit associated with that discipline that is scheduled to occur closest to the 20th Medicare-covered therapy visit, but no later than the 19th Medicare-covered therapy visit.

(E) As specified in paragraphs (c)(2)(i)(A), (B), (C), and (D) of this section, therapy visits for the therapy discipline(s) not in compliance with these policies will not be covered until the following conditions are met:

(1) The qualified therapist has completed the reassessment and objective measurement of the effectiveness of the therapy as it relates to the therapy goals. As long as paragraphs (c)(2)(i) (E)(2) and (c)(2)(i) (E)(3) of this section are met, therapy coverage resumes with the completed reassessment therapy visit.

(2) The qualified therapist has determined if goals have been achieved or require updating.

(3) The qualified therapist has documented measurement results and corresponding therapy effectiveness in the clinical record in accordance with § 409.44(c)(2)(i)(H) of this section.

(F) If the criteria for maintenance therapy, described at § 409.44(c)(2)(iii)(B) and (C) of this section are not met, the following criteria must also be met for subsequent therapy visits to be covered:

(1) If the objective measurements of the reassessment do not reveal progress toward goals, the qualified therapist together with the physician must determine whether the therapy is still effective or should be discontinued.

(2) If therapy is to be continued in accordance with § 409.44(c)(2)(iv)(B)(1) of this section, the clinical record must document with a clinically supportable statement why there is an expectation that the goals are attainable in a reasonable and generally predictable period of time.

(G) Clinical notes written by therapy assistants may supplement the clinical record, and if included, must include the date written, the signature, professional designation, and objective measurements or description of changes in status (if any) relative to each goal being addressed by treatment. Assistants may not make clinical judgments about why progress was or was not made, but must report the progress or the effectiveness of the therapy (or lack thereof) objectively.

(H) Documentation by a qualified therapist must include the following:

(1) The therapist's assessment of the effectiveness of the therapy as it relates to the therapy goals;

(2) Plans for continuing or discontinuing treatment with reference to evaluation results and or treatment plan revisions;

(3) Changes to therapy goals or an updated plan of care that is sent to the physician for signature or discharge;

(4) Documentation of objective evidence or a clinically supportable statement of expectation that the patient can continue to progress toward the treatment goals and is responding to therapy in a reasonable and generally predictable period of time; or in the case of maintenance therapy, the patient is responding to therapy and can meet the goals in a predictable period of time.

(ii) The services must be of such a level of complexity and sophistication or the condition of the beneficiary must be such that the services required can safely and effectively be performed only by a qualified physical therapist or by a qualified physical therapy assistant under the supervision of a qualified physical therapist, by a qualified speech-language pathologist, or by a qualified occupational therapist or a qualified occupational therapy assistant under the supervision of a qualified occupational therapist (as defined in § 484.4 of this chapter). Services that do not require the performance or supervision of a physical therapist or an occupational therapist are not considered reasonable or necessary physical therapy or occupational therapy services, even if they are performed by or supervised by a physical therapist or occupational therapist. Services that do not require the skills of a speech-language pathologist are not considered to be reasonable and necessary speech-language pathology services even if they are performed by or supervised by a speech-language pathologist.

(iii) For therapy services to be covered in the home health setting, one of the following three criteria must be met:

(A) There must be an expectation that the beneficiary's condition will improve materially in a reasonable (and generally predictable) period of time based on the physician's assessment of the beneficiary's restoration potential and unique medical condition.

(1) Material improvement requires that the clinical record demonstrate that the patient is making improvement towards goals when measured against his or her condition at the start of treatment.

(2) If an individual's expected restorative potential would be insignificant in relation to the extent and duration of therapy services required to achieve such potential, therapy would not be considered reasonable and necessary, and thus would not be covered.

(3) When a patient suffers a transient and easily reversible loss or reduction of function which could reasonably be expected to improve spontaneously as the patient gradually resumes normal activities, because the services do not require the performance or supervision of a qualified therapist, those services are not to be considered reasonable and necessary covered therapy services.

(B) The unique clinical condition of a patient may require the specialized skills, knowledge, and judgment of a qualified therapist to design or establish a safe and effective maintenance program required in connection with the patient's specific illness or injury.

(1) If the services are for the establishment of a maintenance program, they must include the design of the program, the instruction of the beneficiary, family, or home health aides, and the necessary periodic reevaluations of the beneficiary and the program to the degree that the specialized knowledge and judgment of a physical therapist, speech-language pathologist, or occupational therapist is required.

(2) The maintenance program must be established by a qualified therapist (and not an assistant).

(C) The unique clinical condition of a patient may require the specialized skills of a qualified therapist to perform a safe and effective maintenance program required in connection with the patient's specific illness or injury. Where the clinical condition of the patient is such that the complexity of the therapy services required to maintain function involve the use of complex and sophisticated therapy procedures to be delivered by the therapist himself/herself (and not an assistant) or the clinical condition of the patient is such that the complexity of the therapy services required to maintain function must be delivered by the therapist himself/herself (and not an assistant) in order to ensure the patient's safety and to provide an effective maintenance program, then those reasonable and necessary services shall be covered.

(iv) The amount, frequency, and duration of the services must be reasonable and necessary, as determined by a qualified therapist and/or physician, using accepted standards of clinical practice.

(A) Where factors exist that would influence the amount, frequency or duration of therapy services, such as factors that may result in providing more services than are typical for the patient's condition, those factors must be documented in the plan of care and/or functional assessment.

(B) Clinical records must include documentation using objective measures that the patient continues to progress towards goals. If progress cannot be measured, and continued progress towards goals cannot be expected, therapy services cease to be covered except when–

(1) Therapy progress regresses or plateaus, and the reasons for lack of progress are documented to include justification that continued therapy treatment will lead to resumption of progress toward goals; or

(2) Maintenance therapy as described in § 409.44(c)(2)(iii)(B) or (C) is needed.

42 C.F.R. § 409.45 Dependent services requirements

(a) General. Services discussed in paragraphs (b) through (g) of this section may be covered only if the beneficiary needs skilled nursing care on an intermittent basis, as described in § 409.44(b); physical therapy or speech-language pathology services as described in § 409.44(c); or has a continuing need for occupational therapy services as described in § 409.44(c) if the beneficiary's eligibility for home health services has been established by virtue of a prior need for intermittent skilled nursing care, speech-language pathology services, or physical therapy in the current or prior certification period; and otherwise meets the qualifying criteria (confined to the home,

under the care of a physician, in need of skilled services, and under a plan of care) specified in § 409.42. Home health coverage is not available for services furnished to a beneficiary who is no longer in need of one of the qualifying skilled services specified in this paragraph. Therefore, dependent services furnished after the final qualifying skilled service are not covered, except when the dependent service was not followed by a qualifying skilled service as a result of the unexpected inpatient admission or death of the beneficiary, or due to some other unanticipated event.

(b) Home health aide services. To be covered, home health aide services must meet each of the following requirements:

(1) The reason for the visits by the home health aide must be to provide hands-on personal care to the beneficiary or services that are needed to maintain the beneficiary's health or to facilitate treatment of the beneficiary's illness or injury. The physician's order must indicate the frequency of the home health aide services required by the beneficiary. These services may include but are not limited to:

(i) Personal care services such as bathing, dressing, grooming, caring for hair, nail and oral hygiene that are needed to facilitate treatment or to prevent deterioration of the beneficiary's health, changing the bed linens of an incontinent beneficiary, shaving, deodorant application, skin care with lotions and/or powder, foot care, ear care, feeding, assistance with elimination (including enemas unless the skills of a licensed nurse are required due to the beneficiary's condition, routine catheter care, and routine colostomy care), assistance with ambulation, changing position in bed, and assistance with transfers.

(ii) Simple dressing changes that do not require the skills of a licensed nurse.

(iii) Assistance with medications that are ordinarily self-administered and that do not require the skills of a licensed nurse to be provided safely and effectively.

(iv) Assistance with activities that are directly supportive of skilled therapy services but do not require the skills of a therapist to be safely and effectively performed, such as routine maintenance exercises and repetitive practice of functional communication skills to support speech-language pathology services.

(v) Routine care of prosthetic and orthotic devices.

(2) The services to be provided by the home health aide must be–

(i) Ordered by a physician in the plan of care; and

(ii) Provided by the home health aide on a part-time or intermittent basis.

(3) The services provided by the home health aide must be reasonable and necessary. To be considered reasonable and necessary, the services must–

(i) Meet the requirement for home health aide services in paragraph (b)(1) of this section;

(ii) Be of a type the beneficiary cannot perform for himself or herself; and

(iii) Be of a type that there is no able or willing caregiver to provide, or, if there is a potential caregiver, the beneficiary is unwilling to use the services of that individual.

(4) The home health aide also may perform services incidental to a visit that was for the provision of care as described in paragraphs (b)(3)(i) through (iii) of this section. For example, these incidental services may include changing bed linens, personal laundry, or preparing a light meal.

(c) Medical social services. Medical social services may be covered if the following requirements are met:

(1) The services are ordered by a physician and included in the plan of care.

(2)(i) The services are necessary to resolve social or emotional problems that are expected to be an impediment to the effective treatment of the beneficiary's medical condition or to his or her rate of recovery.

(ii) If these services are furnished to a beneficiary's family member or caregiver, they are furnished on a short-term basis and it can be demonstrated that the service is necessary to resolve a clear and direct impediment to the effective treatment of the beneficiary's medical condition or to his or her rate of recovery.

(3) The frequency and nature of the medical social services are reasonable and necessary to the treatment of the beneficiary's condition.

(4) The medical social services are furnished by a qualified social worker or qualified social work assistant under the supervision of a social worker as defined in § 484.4 of this chapter.

(5) The services needed to resolve the problems that are impeding the beneficiary's recovery require the skills of a social worker or a social work assistant under the supervision of a social worker to be performed safely and effectively.

(d) Occupational therapy. Occupational therapy services that are not qualifying services under § 409.44(c) are nevertheless covered as dependent services if the requirements of § 409.44(c)(2)(i) through (iv), as to reasonableness and necessity, are met.

(e) Durable medical equipment. Durable medical equipment in accordance with § 410.38 of this chapter, which describes the scope and conditions of payment for durable medical equipment under Part B, may be covered under the home health benefit as either a Part A or Part B service. Durable medical equipment furnished by an HHA as a home health service is always covered by Part A if the beneficiary is entitled to Part A.

(f) Medical supplies. Medical supplies (including catheters, catheter supplies, ostomy bags, and supplies relating to ostomy care but excluding drugs and biologicals) may be covered as a home health benefit. For medical supplies to be covered as a Medicare home health benefit, the medical supplies must be needed to treat the beneficiary's illness or injury that occasioned the home health care.

(g) Intern and resident services. The medical services of interns and residents in training under an approved hospital teaching program are covered if the services are ordered by the physician who is responsible for the plan of care and the HHA is affiliated with or under the common control of the hospital furnishing the medical services.

Approved means–

(1) Approved by the Accreditation Council for Graduate Medical Education;

(2) In the case of an osteopathic hospital, approved by the Committee on Hospitals of the Bureau of Professional Education of the American Osteopathic Association;

(3) In the case of an intern or resident-in-training in the field of dentistry, approved by the Council on Dental Education of the American Dental Association; or

(4) In the case of an intern or resident-in-training in the field of podiatry, approved by the Council on Podiatric Medical Education of the American Podiatric Medical Association.

You can access these regulations at various websites, including: www.law.cornell.edu


Medicare Expedited Appeal Regulations

§ 405.1200 Notifying beneficiaries of provider service terminations.

(a) Applicability and scope.

(1) For purposes of §§ 405.1200 through 405.1204, the term, provider, is defined as a home health agency (HHA), skilled nursing facility (SNF), comprehensive outpatient rehabilitation facility (CORF), or hospice.

(2) For purposes of §§ 405.1200 through 405.1204, a termination of Medicare-covered service is a discharge of a beneficiary from a residential provider of services, or a complete cessation of coverage at the end of a course of treatment prescribed in a discrete increment, regardless of whether the beneficiary agrees that the services should end. A termination does not include a reduction in services.  A termination also does not include the termination of one type of service by the provider if the beneficiary continues to receive other Medicare-covered services from the provider.

(b) Advance written notice of service terminations.  Before any termination of services, the provider of the service must deliver valid written notice to the beneficiary of the provider's decision to terminate services.  The provider must use a standardized notice, as specified by CMS, in accordance with the following procedures:

(1) Timing of notice.  A provider must notify the beneficiary of the decision to terminate covered services no later than 2 days before the proposed end of the services.  If the beneficiary's services are expected to be fewer than 2 days in duration, the provider must notify the beneficiary at the time of admission to the provider.  If, in a non-residential setting, the span of time between services exceeds 2 days, the notice must be given no later than the next to last time services are furnished.

(2) Content of the notice.  The standardized termination notice must include the following information:

(i) The date that coverage of services ends;

(ii) The date that the beneficiary's financial liability for continued services begins;

(iii) A description of the beneficiary's right to an expedited determination under § 405.1202, including information about how to request an expedited determination and about a beneficiary's right to submit evidence showing that services must continue;

(iv) A beneficiary's right to receive the detailed information specified under § 405.1202(f); and

(v) Any other information required by CMS.

(3) When delivery of the notice is valid.  Delivery of the termination notice is valid if–

(i) The beneficiary (or the beneficiary's authorized representative) has signed and dated the notice to indicate that he or she has received the notice and can comprehend its contents; and

(ii) The notice is delivered in accordance with paragraph (b)(1) of this section and contains all the elements described in paragraph (b)(2) of this section.

(4) If a beneficiary refuses to sign the notice.  The provider may annotate its notice to indicate the refusal, and the date of refusal is considered the date of receipt of the notice.

(5) Financial liability for failure to deliver valid notice.  A provider is financially liable for continued services until 2 days after the beneficiary receives valid notice as specified under paragraph (b)(3) of this section, or until the service termination date specified on the notice, whichever is later.  A beneficiary may waive continuation of services if he or she agrees with being discharged sooner than the planned service termination date.

§ 405.1202 Expedited determination procedures.

(a) Beneficiary's right to an expedited determination by the QIO.  A beneficiary has a right to an expedited determination by a QIO under the following circumstances:

(1) For services furnished by a non-residential provider, the beneficiary disagrees with the provider of those services that services should be terminated, and a physician certifies that failure to continue the provision of the service(s) may place the beneficiary's health at significant risk.

(2) For services furnished by a residential provider or a hospice, the beneficiary disagrees with the provider's decision to discharge the beneficiary.

(b) Requesting an expedited determination.

(1) A beneficiary who wishes to exercise the right to an expedited determination must submit a request for a determination to the QIO in the State in which the beneficiary is receiving those provider services, in writing or by telephone, by no later than noon of the calendar day following receipt of the provider's notice of termination.  If the QIO is unable to accept the beneficiary's request, the beneficiary must submit the request by noon of the next day the QIO is available to accept a request.

(2) The beneficiary, or his or her representative, must be available to answer questions or to supply information that the QIO may request to conduct its review.

(3) The beneficiary may, but is not required to, submit evidence to be considered by a QIO in making its decision.

(4) If a beneficiary makes an untimely request for an expedited determination by a QIO, the QIO will accept the request and make a determination as soon as possible, but the 72–hour time frame under paragraph (e)(6) and the financial liability protection under paragraph (g) of this section do not apply.

(c) Coverage of provider services.  Coverage of provider services continues until the date and time designated on the termination notice, unless the QIO reverses the provider's service termination decision.  If the QIO's decision is delayed because the provider did not timely supply necessary information or records, the provider may be liable for the costs of any additional coverage, as determined by the QIO in accordance with paragraph (e)(7) of this section.  If the QIO finds that the beneficiary did not receive valid notice, coverage of provider services continues until at least 2 days after valid notice has been received.  Continuation of coverage is not required if the QIO determines that coverage could pose a threat to the beneficiary's health or safety.

(d) Burden of proof.  When a beneficiary requests an expedited determination by a QIO, the burden of proof rests with the provider to demonstrate that termination of coverage is the correct decision, either on the basis of medical necessity, or based on other Medicare coverage policies.

(1) In order for the QIO to determine whether the provider has met the burden of proof, the provider should supply any and all information that a QIO requires to sustain the provider's termination decision, consistent with paragraph (f) of this section.

(2) The beneficiary may submit evidence to be considered by a QIO in making its decision.

(e) Procedures the QIO must follow.

(1) On the day the QIO receives the request for an expedited determination under paragraph (b) of this section, it must immediately notify the provider of those services that a request for an expedited determination has been made.

(2) The QIO determines whether the provider delivered valid notice of the termination decision consistent with § 405.1200(b) and paragraph (f) of this section.

(3) The QIO examines the medical and other records that pertain to the services in dispute.  If applicable, the QIO determines whether a physician has certified that failure to continue the provision of services may place the beneficiary's health at significant risk.

(4) The QIO must solicit the views of the beneficiary who requested the expedited determination.

(5) The QIO must provide an opportunity for the provider/practitioner to explain why the termination or discharge is appropriate.

(6) No later than 72 hours after receipt of the request for an expedited determination, the QIO must notify the beneficiary, beneficiary's physician, and the provider of services of its determination whether termination of Medicare coverage is the correct decision, either on the basis of medical necessity or based on other Medicare coverage policies.

(7) If the QIO does not receive the information needed to sustain a provider's decision to terminate services, it may make its determination based on the evidence at hand, or it may defer a decision until it receives the necessary information.  If this delay results in extended Medicare coverage of an individual's provider services, the provider may be held financially liable for these services, as determined by the QIO.

(8) The QIO's initial notification may be by telephone, followed by a written notice including the following information:

(i) The rationale for the determination;

(ii) An explanation of the Medicare payment consequences of the determination and the date a beneficiary becomes fully liable for the services; and

(iii) Information about the beneficiary's right to a reconsideration of the QIO's determination, including how to request a reconsideration and the time period for doing so.

(f) Responsibilities of providers.

(1) When a QIO notifies a provider that a beneficiary has requested an expedited determination, the provider must send a detailed notice to the beneficiary by close of business of the day of the QIO's notification.  The detailed termination notice must include the following information:

(i) A specific and detailed explanation why services are either no longer reasonable and necessary or are no longer covered;

(ii) A description of any applicable Medicare coverage rule, instruction, or other Medicare policy, including citations to the applicable Medicare policy rules or information about how the beneficiary may obtain a copy of the Medicare policy;

(iii) Facts specific to the beneficiary and relevant to the coverage determination that are sufficient to advise the beneficiary of the applicability of the coverage rule or policy to the beneficiary's case; and

(iv) Any other information required by CMS.

(2) Upon notification by the QIO of the request for an expedited determination, the provider must supply all information that the QIO needs to make its expedited determination, including a copy of the notices required under § 405.1200(b) and under paragraph (f)(1) of this section. The provider must furnish this information as soon as possible, but no later than by close of business of the day the QIO notifies the provider of the request for an expedited determination. At the discretion of the QIO, the provider may make the information available by phone or in writing (with a written record of any information not transmitted initially in writing).

(3) At a beneficiary's request, the provider must furnish the beneficiary with a copy of, or access to, any documentation that it sends to the QIO including records of any information provided by telephone.  The provider may charge the beneficiary a reasonable amount to cover the costs of duplicating the documentation and/or delivering it to the beneficiary.  The provider must accommodate such a request by no later than close of business of the first day after the material is requested.

(g) Coverage during QIO review.  When a beneficiary requests an expedited determination in accordance with the procedures required by this section, the provider may not bill the beneficiary for any disputed services until the expedited determination process (and reconsideration process, if applicable) has been completed.

§ 405.1204 Expedited reconsiderations.

(a) Beneficiary's right to an expedited reconsideration.  A beneficiary who is dissatisfied with a QIO's expedited determination may request an expedited reconsideration by the appropriate QIC.

(b) Requesting an expedited reconsideration.

(1) A beneficiary who wishes to obtain an expedited reconsideration must submit a request for the reconsideration to the appropriate QIC, in writing or by telephone, by no later than noon of the calendar day following initial notification (whether by telephone or in writing) receipt of the QIO's determination.  If the QIC is unable to accept the beneficiary's request, the beneficiary must submit the request by noon of the next day the QIC is available to accept a request.

(2) The beneficiary, or his or her representative, must be available to answer questions or supply information that the QIC may request to conduct its reconsideration.

(3) The beneficiary may, but is not required to, submit evidence to be considered by a QIC in making its decision.

(4) A beneficiary who does not file a timely request for an expedited QIC reconsideration subsequently may request a reconsideration under the standard claims appeal process, but the coverage protections described in paragraph (f) of this section would not extend through this reconsideration, nor would the timeframes or the escalation process described in paragraphs (c)(3) and (c)(5) of this section, respectively.

(c) Procedures the QIC must follow.

(1) On the day the QIC receives the request for an expedited determination under paragraph (b) of this section, the QIC must immediately notify the QIO that made the expedited determination and the provider of services of the request for an expedited reconsideration.

(2) The QIC must offer the beneficiary and the provider an opportunity to provide further information.

(3) Unless the beneficiary requests an extension in accordance with paragraph (c)(6) of this section, no later than 72 hours after receipt of the request for an expedited reconsideration, and any medical or other records needed for such reconsideration, the QIC must notify the QIO, the beneficiary, the beneficiary's physician, and the provider of services, of its decision on the reconsideration request.

(4) The QIC's initial notification may be done by telephone, followed by a written notice including:

(i) The rationale for the reconsideration decision;

(ii) An explanation of the Medicare payment consequences of the determination and the beneficiary's date of liability; and

(iii) Information about the beneficiary's right to appeal the QIC's reconsideration decision to an ALJ, including how to request an appeal and the time period for doing so.

(5) Unless the beneficiary requests an extension in accordance with paragraph (c)(6) of this section, if the QIC does not issue a decision within 72 hours of receipt of the request, the QIC must notify the beneficiary of his or her right to have the case escalated to the ALJ hearing level if the amount remaining in controversy after the QIO determination is $100 or more.

(6) A beneficiary requesting an expedited reconsideration under this section may request (either in writing or orally) that the QIC grant such additional time as the beneficiary specifies (not to exceed 14 days) for the reconsideration.  If an extension is granted, the deadlines in paragraph (c)(3) of this section do not apply.

(d) Responsibilities of the QIO.

(1) When a QIC notifies a QIO that a beneficiary has requested an expedited reconsideration, the QIO must supply all information that the QIC needs to make its expedited reconsideration as soon as possible, but no later than by close of business of the day that the QIC notifies the QIO of the request for an expedited reconsideration.

(2) At a beneficiary's request, the QIO must furnish the beneficiary with a copy of, or access to, any documentation that it sends to the QIC.  The QIO may charge the beneficiary a reasonable amount to cover the costs of duplicating the documentation and/or delivering it to the beneficiary.  The QIO must accommodate the request by no later than close of business of the first day after the material is requested.

(e) Responsibilities of the provider.  A provider may, but is not required to, submit evidence to be considered by a QIC in making its decision.  If a provider fails to comply with a QIC's request for additional information beyond that furnished to the QIO for purposes of the expedited determination, the QIC makes its reconsideration decision based on the information available.

(f) Coverage during QIC reconsideration process.  When a beneficiary requests an expedited reconsideration in accordance with the deadline specified in (b)(1) of this section, the provider may not bill the beneficiary for any disputed services until the QIC makes its determination.

You can access these regulations at various websites, including:  www.law.cornell.edu


Important Information About Medicare Policies and Guidelines

The “Internet-only Manuals” (IOMs) are the official compilation of the Center for Medicare & Medicaid Services’ (CMS) policies.  They include CMS' program issuances, day-to-day operating instructions, policies, and procedures that are based on statutes, regulations, guidelines, models, and directives.  The CMS program staff, providers, contractors, Medicare Advantage organizations, and state survey agencies use the IOMs to administer Medicare.

The home health care manual can be found at: www.cms.gov/manuals/iom/List.asp.  On this page, click the Internet-Only Manuals button on the left hand side of the screen.  Then open publication 100-2.  This is the Medicare Benefit Claims Manual.  From here, open Chapter 7.  This chapter is entitled, Home Health Services.

Information in this chapter may be useful for preparing a successful appeal.  However, be aware that any language requiring improvement for coverage is legally incorrect and will soon be changed.  This is because of the federal court case, Jimmo v. Sebelius, (D.VT 1/24/2013).  In Jimmo, the judge approved a settlement stating that Medicare coverage for home health care does not depend on the individual’s potential for improvement, but rather on his or her need for skilled care – which can be to maintain or slow deterioration of the individual’s condition.

Specifically, the Jimmo Settlement requires that CMS clarify that in skilled nursing facility, home health, and outpatient settings, “coverage of therapy to perform a maintenance program 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.”  The Settlement also requires CMS to clarify that Medicare coverage of skilled nursing facility and home health care “does not turn on the presence or absence of an individual’s potential for improvement from the nursing care, but rather on the beneficiary’s need for skilled care.”

Because of the Jimmo settlement, CMS will revise its Medicare Benefit Policy Manual and other guidelines to make it clear that Medicare coverage is available for skilled nursing and/or physical, speech, and occupational therapy to maintain the individual’s condition.  Improvement is not required.

For more information on the settlement, see our Improvement Standard page.

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