Maintenance Therapy in Home Health Revisited: Part 1

Kenneth: Thank you very much for having me. I appreciate the time to be here today. This is a two-part educational series and the learning outcomes pertain to both Part 1 and 2. Before we get started, I have a pretest here for today's Part 1.

Pretest

Take a moment and look at these three questions.

• TRUE/FALSE. Only progressive neurological conditions are covered for maintenance therapy.
• TRUE/FALSE. Maintenance episodes are included in home health STAR Ratings.
• TRUE/FALSE. If a patient does not have a caregiver to perform maintenance program, a therapist is allowed to stay in and do it indefinitely.

If you know all three answers and you are very confident, I think that is great. I am sure the majority of people have questions about maintenance therapy. I consult around the country, and I am always asked, "Why do we not see more maintenance care provided?" There is a misconception about that, and we will talk about that in the course of today's session.

Urban Legends

• Medicare does not cover maintenance therapy.
• Only Medicaid covers maintenance therapy.
• You need Medicaid to keep therapy going.
• I read the NY Times article. You can keep coming forever.

There are a lot of misconceptions out there amongst clinicians and patients, and a lot of urban legends as to what is and is not covered.

Medicare does not cover maintenance therapy.

If you work for an agency and the agency says, "We do not provide maintenance therapy," and they are considered a certified home health agency, billing under the Medicare Part A benefit, and collecting OASIS data, it is illegal to say that you are not providing maintenance therapy if you have patients that are appropriate. This is because it is one of the benefits in the coverage for home care. Medicare does have a maintenance benefit, but it is used very sporadically and not very many patients receive the care. It is a benefit that beneficiaries if they meet the criteria, are entitled to have provided.

Only Medicaid covers maintenance therapy.

I am in New York. We have a robust Medicaid program, which is a federally and state-funded program, but it is managed by the state. I hate to say that we have a robust Medicaid program because every year it seems to be cut, but we have a program where Medicaid has maintenance benefits for nursing, therapy, and social work care. However, Medicaid maintenance is not what I will be talking about today. I will be talking about maintenance under Medicare.

You need Medicaid to keep therapy going.

That is just not true.

I read The New York Times article. You can keep coming forever.

Some of you may not have reference to what I am saying here, but I will explain that as we go through the material today. There was an article in "The New York Times" that had an article that made patients feel that they could have therapy in their home for an indefinite basis. That is not the Medicare maintenance benefit, and I will talk about that as we get through the material.

Background

What brought all of this maintenance therapy to light? 

Settlement Timeline

It started back on January 18, 2011. I want to give you a little bit of history because if we do not understand the history, I think it is hard to explain to our patients when they qualify and when they do not. It started with a class-action lawsuit filed in Vermont, and it was filed on behalf of Glenda Jimmo. If you Google her name, you can up with more information on this topic. Glenda Jimmo, six beneficiary plaintiffs, and seven national organizations filed a lawsuit against CMS and the Health and Human Services Organization, of which Kathleen Sebelius at that time was the secretary. The suit said that they were being discriminated against and excluded from having care based on an improvement standard, that we will talk about that does not exist for all of the stipulations of the benefit. You do not have to have an improvement for certain billing codes of the benefit. 

Jimmo vs. Sebelius

On January 24, 2013, the U. S. District Court for the District of Vermont approved a settlement agreement. The parties came to an agreement that was approved as the plaintiffs alleged that Medicare contractors were inappropriately applying an improvement standard and making determinations of claims and denying payment for cases. It included coverage in nursing homes under the skilled nursing benefit, home health under the chapter seven Home Health Part A Medicare benefit, and under Medicare outpatient therapy benefits.

We are going to talk about where to look for the rules directly. I want you to be able to go to the regulations yourselves and make your own determination based on what you are reading in the regulations because there is some area there for interpretation. And where there is an interpretation of what I will be going over, I will tell you my interpretation of the regulations so that we are clear.

NY Times – Oct 22, 2012

I want to go back to the "New York Times" article, that was released in 2012. The front page stated that a settlement eased rules for some Medicare patients. It was an article by Robert Pierre and that brought attention to this whole maintenance therapy debate. The reality is the settlement does not change any of the benefit itself, the settlement only made Medicare and the Health and Human Services Department of the government clarify the benefit with more instruction of definitions.

In the "New York Times" article, it says tens of thousands of people with chronic conditions and disabilities would find it easier to qualify for Medicare coverage of potentially costly home health care skilled nursing home stays and outpatient therapy under policy changes planned by the Obama administration. That was simply not true. Obama and the Democratic leadership of the government in 2011, 2012 and 2013 did not change the benefit. All they did was clarify what the rule was as the Medicare contractors were misapplying the rule across all of the claims. We will talk about what those different claims are later.

Settlement Agreement

The goal of the settlement was to make sure claims were correctly adjudicated in accordance with existing Medicare policy so that Medicare beneficiaries received the full coverage to which they were entitled. Nothing in the settlement agreement modified, contracted, or expanded the existing eligibility requirements for receiving Medicare coverage. That quote is exactly what was in the settlement. It was not an expansion of any benefit.

Jimmo Fact Sheet

There was a Jimmo fact sheet that came out on this whole issue of maintenance therapy.

• …beneficiary’s lack of restoration potential cannot, in itself, serve as the basis for denying coverage in this context, without regard to an individualized assessment of the beneficiary’s medical condition and the reasonableness and necessity of the treatment, care, or services in question.
• Conversely, such coverage would not be available in a situation where the beneficiary’s maintenance care needs can be addressed safely and effectively through the use of nonskilled personnel.
• Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves.
• In the case of maintenance therapy, the skills of a therapist are necessary to maintain, prevent, or slow further deterioration of the patient’s functional status, and the services cannot be safely and effectively carried out by the beneficiary personally, or with the assistance of non-therapists, including unskilled caregivers.

This is something I want you to come back to later when we are finished. A beneficiary's lack of restoration potential cannot in itself serve as the basis for denying coverage in this context without regard to an individualized assessment of the beneficiary's medical condition. I love how Medicare makes their own words up. "Reasonableness and necessity of treatment care, or services in question." Conversely, such coverage would not be available in a situation where the beneficiary's maintenance care needs can be addressed safely and effectively through the use of nonskilled personnel. If you are taking notes on this specific slide, I want you to add to this slide. If the patient has care that can be provided by nonskilled personnel, then Medicare's expectation is that it will. It does not cover me to go in as a therapist to provide maintenance care on things that can be handed off to a caregiver, and that is safe for the caregiver to provide. That is an important component. When we go over the regulations, the first thing Medicare looks at is why the patient cannot do the maintenance program themselves, and second, why the patient's caregiver or family member representative cannot help the patient do the program? I cannot just go in there because they need some type of care.

Here is the next statement I want to mention. The coverage depends not on the beneficiary's restoration potential, but on whether the skilled care is required along with the underlying reasonableness and necessity of the services themselves. In the case of maintenance therapy, the skills of a therapist are necessary to maintain, prevent, or slow further deterioration of the patient's functional status, and the services cannot be safely and effectively carried out by the beneficiary personally or with the assistance of non-therapist including unskilled caregivers. This gives us very specific details as to what they will cover and what they will not.

The word I want you to circle on this slide is deterioration. If the patient has a condition that they are going to deteriorate and therapy will help to minimize that deterioration, slow it down, prevent it, or maintain them at that current level of function, then therapy may be covered. I did not say will, but it may be covered on a maintenance basis. If we look at a patient and we are looking to maintain, prevent or slow deterioration, they are not looking at any kind of improvement. They have to have a risk of that deterioration so that is what needs to be documented in our charting when we have a maintenance case. Every visit, we have to document what that deterioration risk is if we do not and if we plan on continuing to go in. If we are going in for maintenance and they have a caregiver to do things that we believe that can be handed off safely to the caregiver to do, we can go in there to assess the patient and see that the program in place with the caregiver is meeting the goal of preventing further deterioration or maintaining them at that level.

Maintenance Therapy (SNF, HH, OPT)

• Jimmo v. Sebelius
• No Improvement Standard
• The skills of a therapist are necessary to maintain, prevent, or slow further deterioration of the patient’s functional status,
• Services cannot be safely and effectively carried out by the beneficiary personally, or with the assistance of non-therapists, including unskilled caregivers

To wrap up all of this information, maintenance therapy is a coverage covered benefit for the skilled nursing facility, the home health setting, and outpatient therapy. For the course of this session, we are going to be focusing on home health. We are not going to talk much about SNF or outpatient practice, the maintenance therapy benefit is a benefit across multiple practice settings, and the benefit itself is slightly different. There are some stipulations in home health that are different from SNF or outpatient, and I will talk about that when we get more into the details of home health maintenance.

To recap, the Jimmo vs Sebelius lawsuit is what brought to light these new definitions and clarifying terms. There is no improvement standard that can be routinely used across the board. However, with that said, some patients need to show improvement if we are looking to improve their function and show a change in status. We would have goals for that and certainly should be able to see that the patient is progressing towards those goals.

There is no improvement standard with maintenance therapy, but there is an improvement part of restorative care. The skills of a therapist are necessary to maintain, prevent or slow further deterioration of the patient's functional status. And services cannot be safely and effectively carried out by the beneficiary personally or with the assistance of non-therapists including unskilled caregivers. Those are the highlights of the maintenance benefit.

Maintenance Program

You can find the CMS Transmittal 179 online.

This is the part of the transmittal that I feel is important. Medicare and CMS put out this transmittal to clarify the maintenance benefit. This, in a nutshell, is what the maintenance benefit is for the Medicare program.

Federal Regulations

When you work in home health or any practice setting, I think it is very important to be fully aware of the regulations. I am not going to go in-depth into all of the laws or the agencies here, but I want to briefly mention these.

• Federal Law – HIPAA, HITECH, ACA
• Federal Agency – HHS, CMS, OSHA, CDC
  • Regulations are dynamic and change
  • CMS – governs Medicare
    • Medicare Benefits Policy Manual
    • Medicare Claims Processing Manual
    • Transmittals
    • Medicare Learning Network (MLN) Matters
    • Medicare Administrative Contractors (MAC) – NGS Medicare; Palmetto GBA; CGS Medicare
      • National Coverage Determination (NCD)
      • Local Coverage Determination (LCD)

You are probably pretty familiar with HIPAA as far as privacy, confidentiality, and the restrictions. Every year, you probably have something in your organization that makes you either check off a box that you understand the HIPAA regulations, that you will conform to those HIPAA regulations. HIPAA is a law that came from the government. It was something that was passed in Congress and signed into law by the President. HITECH, the Health Information Technology for Economic and Clinical Health, and ACA, the Affordable Care Act, are other laws.

There are other laws that have come about since these laws. Any law that has to regulate stipulations about health care provision, whether it is Medicare, Medicaid, CHIP, or anything that comes into play for healthcare then goes to the agencies where they create regulation to clarify what the law is. Because the law is going to provide the broadest language. and then that needs to be converted into actual regulations which are more defined interpretations of the law. The regulations come from HHS, Health and Human Services Agency; CMS, Center for Medicare and Medicaid Services; and OSHA, Occupational Safety Hazard Administration. If any of you are given PPE, personal protective equipment, like gloves, gowns, masks, isolation equipment, or that type of equipment is under the regulation of OSHA to make sure that we have a safe work environment. Again, the federal law comes into play, and then OSHA made regulations for your workplace like eyewash stations and safety data sheets. This is what the federal agencies do.