Over the years, contractors that review Medicare claims have denied coverage for Medicare services inappropriately on the grounds that the beneficiary's condition will not improve. The Center for Medicare Advocacy, through individual appeals and other advocacy efforts, has worked to assure that beneficiaries who need services to maintain their current level of functioning are not denied the care they need. For more information see Medicare Coverage of Therapy Services: Are the Interests of Beneficiaries With Chronic Conditions Being Met? a paper by Center attorney Vicki Gottlich.  The issue arose most recently in decisions issued by the Medicare contractor that conducts reconsiderations of appeals from HMOs and other Medicare Advantage plans.

For six months, attorneys from the Center for Medicare Advocacy negotiated with the Centers for Medicare and Medicaid Services (CMS) over the standard that Maximus Center for Health Dispute Resolution (CHDR) employs in deciding on coverage for skilled nursing facility (SNF) care that is based on the need for skilled therapy.  That effort recently resulted in a change to the standard that will ensure that SNF coverage is not improperly denied. 

As its form letter to beneficiaries stated, Maximus had been applying the following standard: "The doctor must be able to say that the person can keep getting better in therapy.... The doctor must be able to say that the person will get better every day and be able to tell Medicare how long it will take for the person to get better."  This “improvement” standard, which was virtually impossible to satisfy, did not comply with the relevant federal requirements.  In particular, it violated 42 C.F.R. § 409.32(c), which states: “The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed.  Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.”  It also ran afoul of a 1987 injunction applicable to Connecticut SNF residents that prohibited intermediaries from “denying skilled nursing facility coverage ... to patients requiring maintenance therapy....” Fox v. Bowen, 656 F.Supp. 1236, 1247 (D.Conn. 1987).

In the face of these requirements, CMS and Maximus backed down from the improvement standard.  The form language that Maximus will now include in decision letters to beneficiaries (and follow as the standard for coverage) reads: "The services must be provided with the expectation, based on an assessment of the patient's restoration potential, that the condition of the patient will improve materially in a reasonable and generally predictable period of time, OR the services are necessary to establish a safe and effective maintenance program, OR the services must be needed to prevent the patient's condition from getting worse."  This last alternative will ensure that an improvement standard cannot control.

The Center remains concerned about continued application of the old improvement standard.  Advocates whose clients continue to receive decisions from CHDR or other Medicare contractors which apply an improvement standard should contact Center for Medicare Advocacy attorney Gill Deford at gdeford@medicareadvocacy.org, or (860) 456-7790.