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EXCEPTIONS TO Medicare THERAPY Caps |
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To compensate somewhat for these coverage limitations, Congress passed an "exceptions process" in the Deficit Reduction Act of 2005 (DRA), which was set to expire January 1, 2007 but was extended by Congress. The exceptions process was recently re-extended through December 31, 2009 by the The Medicare Improvements for Patients and Providers Act of 2008 (MIPPA). Either a provider or the beneficiary can submit a request for an exception. Although both automatic exceptions, which are automatically approved, and those requiring manual approval by Medicare were authorized by the DRA, as of January 1, 2007, the manual process for exceptions ended, and all services that require exceptions to caps will be processed using the automatic exceptions process. The most important aspect for approval of an exception is the "medical necessity" of the requested therapy. Any request for an exception to a therapy cap requires that the therapy be "medically necessary" for the treatment of the condition. Automatic Exceptions Automatic exceptions can cover:
A list of condition codes that fall into the "automatically" excepted category can be found at http://www.cms.hhs.gov/transmittals/downloads/R855CP.pdf. Diagnoses and procedures that qualify as automatic exceptions do not require that any particular piece of documentation be submitted to the Medicare contractor. Rather, whatever documentation demonstrates the "medical necessity" of the automatically excepted diagnosis must be provided. However, complete documentation must be maintained in case the claim is reviewed. Though not specifically stated by CMS, Complexities appear to be of two varieties: (1) physical ailments that lead to complexities in treating the targeted condition of the body, and (2) complications of management flow leading to a potential delay in treatment. Depending on the nature of the complexity, an exception should be approved for any complexity affecting the beneficiary’s ability to recover from the condition. Complexities due to physical ailments must also be connected to a condition, especially if they are to qualify as an automatic exception. However, some complexities will qualify as an automatic exception even if they are connected to a condition that is not specifically listed in the ICD-9 list of automatically excepted diagnoses. This can happen for an unrelated condition that causes a complexity affecting the rate of recovery for the originally diagnosed condition. For example, if the beneficiary is experiencing a musculoskeletal problem that is not associated with the condition receiving therapy (example given by CMS: a wrist injury that prevents the use of a cane), but it does impact the ability for the patient to recover, then this complexity can qualify as an automatic exception for any additional treatment required. "Complexities" due to management flow issues can be excepted for a variety of CMS provided reasons, such as if a beneficiary requires treatment within 30 treatment days of being discharged from a hospital or SNF, or if a beneficiary needs to return to a pre-morbid living situation, or if a beneficiary is unable to reach an outpatient hospital therapy service due to lack of access (thus resulting in approval for treatment at a non-hospital based facility). Additionally, if a beneficiary requires both physical therapy and speech therapy simultaneously, then this particular type of complexity will be excepted once this double treatment reaches the cap. Evaluation services are also "automatically" excepted, but will only be excepted once the cap is reached (this is known as a retroactive exception). To be excepted from the therapy cap, the services must be one of the following from the list of Outpatient Rehabilitation HCPCS Codes:
Limitations Only 15 additional days of treatment may be requested at any one time. However, a plan justifying any additional treatment days, including any days beyond the initial 15, must be submitted with the exceptions request. Contractor’s Decision Process If the Medicare contractor does not make a decision on a manual exceptions request within 10 days, the services are automatically considered "medically necessary" and the requested therapy treatment is automatically approved. It is important to note, however, that the CMS information on this 10 day window for contractors to make a decision infers that the contractor does not need to notify the beneficiary of a decision within those 10 days, so the beneficiary or his/her provider may need to inquire after the window has closed to ascertain the determination. Permanent Exception The therapy caps do not apply to therapy services rendered in an outpatient hospital facility or in emergency rooms. Therefore, beneficiaries that have reached their limit of Medicare coverage for therapy can be referred to an outpatient hospital setting where the therapy cap does not apply. This exception does not include therapy services at SNFs however. Appeals Because the therapy caps are statutorily based, they are difficult to appeal. However, an appeal is not precluded, and appeals of therapy caps appear to follow the standard Part B appeals process. Developments Representative Philip S. English (R-Pa.) introduced bill H.R. 916 (Medicare Access to Rehabilitation Services Act) to repeal the caps. A similar bill is in the Senate (S. 438). Both were introduced in February 2005 and have not received any action since their introduction. However, the publication "The Hill" recently reported that the House bill currently has 251 co-sponsors, and the Senate version has 44 co-sponsors, and appears to be gaining momentum. Authorities
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