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  1. Medicare Coverage for Home Care Is Based On a Need For Skilled Care – Improvement Is Not Required
  2. The American Health Care Act undermines Medicare

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 https://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 Coverage for Home Care Is Based On a Need For Skilled Care – Improvement Is Not Required

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.


The American Health Care Act Undermines Medicare

(Op-Ed by Center Executive Director Judith Stein for The Hill, May 29, 2017)

When people say that the American Health Care Act (AHCA) doesn’t affect older adults or touch Medicare: don’t believe it.

As the Congressional Budget Office (CBO) confirmed again last week, if this bill were enacted, 23 million people would lose their insurance coverage, disproportionately among older people with low-income, between age 50 and 64.                          

One of the most damaging aspects of AHCA is its devastating $834 billion cut and restructuring of Medicaid. These Medicaid changes will significantly affect the Medicare program, Medicare beneficiaries and taxpayers.

Among other things, one in five Medicare beneficiaries relies on Medicaid to cover their Medicare premiums. This means that 11 million of the country’s most vulnerable older and disabled citizens will be directly harmed by AHCA’s Medicaid cuts.

Millions more Americans aged 50 – 64 will lose their insurance under the AHCA. This means that once they become eligible for Medicare, many of these individuals will need more – and more expensive – health services. This will drive up costs for all Medicare beneficiaries, the Medicare program, and the overall health care system.

Further, the AHCA repeals a tax on pharmaceutical manufacturers, which would increase Part B premiums for Medicare beneficiaries. 

The Affordable Care Act, on the other hand, helped strengthen Medicare – increasing the Trust Fund’s lifespan by over a decade. This was accomplished, in part, through a minimal payroll tax increase for high income earners. The AHCA repeals this tax, weakening Medicare’s solvency and stability.

Last week more than 75 national organizations – including my own, the Center for Medicare Advocacy – sent a letter to Senate leaders, urging them to reject the AHCA. The letter voices opposition to AHCA, its effort to undermine Medicare financing and to diminish access to essential care. We expressed alarm that Congress would knowingly vote to undercut the Medicare Trust Fund. Read the full letter here.

Simply put, the AHCA is not a healthcare bill. A health care bill would strengthen coverage and delivery programs. The AHCA gratuitously weakens Medicare, decimates Medicaid, and guts insurance for 23 million people. We urge the Senate to reject this charade and develop a real healthcare bill that improves coverage and enhances Medicare, Medicaid and the Affordable Care Act.

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Judith Stein founded the Center for Medicare Advocacy, Inc. in 1986, where she is the Executive Director. From 1977 until 1986, Ms. Stein was the Co-Director of Legal Assistance to Medicare Patients (LAMP), where she managed the first Medicare advocacy program in the country. She has extensive experience in developing and administering Medicare advocacy projects and representing Medicare beneficiaries. 

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