Medicare Network Conference Call
February 19, 2003
Call Summary
Medicare National and Local Coverage Determinations and Medical Necessity Decisions in Medicare
I. Introduction
The guest speaker was Vicki Gottlich, Staff Attorney at the Healthcare Rights Project of the Center for Medicare Advocacy. Ms. Gottlich recently completed a study of medical necessity criteria in the Medicare program for the Partnership for Solutions www.partnershipforsolutions.org at The Johns Hopkins University. Ms. Gottlich's paper Medical Necessity Determinations in the Medicare Program: Are the Interests of Beneficiaries with Chronic Conditions Being Met? is available at http://www.partnershipforsolutions.com/DMS/files/MedNec1202.pdf or from the Center for Medicare Advocacy at www.medicareadvocacy.org/ from the Healthcare Rights Project.
II. Why Coverage Determinations?
Medicare covers many categories of medical care, such as hospital care, skilled nursing facility care, physicians' services, etc. Yet the Medicare statute rarely describes with any particularity the coverage criteria for the specific services covered within the broad categories described in the statute. One exception is the home health benefit. The Medicare statute states that skilled nursing, speech, physical and occupational therapy, and aide services are available though the Medicare home health benefit and articulates the coverage criteria that must be satisfied in order for a Medicare beneficiary to have the service covered. Moreover, the Medicare statute now provides coverage for certain categories of preventive benefits in the Medicare benefits package: flu shots, Hepatitis B, mammograms, colorectal screening, and other preventive or screening services. The statute describes the criteria that must be satisfied in order for Medicare to cover these screening services.
What can be discerned in the many instances in which the Medicare law is not as specific as it is in describing how to qualify for home health care or the preventive services? Where can one find the criteria for Medicare coverage if they are not articulated in the statute or regulations? There are too many covered services to include all of the coverage criteria in the Medicare statute. Over 10,000 codes are use to make claims for reimbursement for diagnostic services covered by Medicare and far more for care and treatments.
Medicare has developed a number of different ways to determine whether medical services will be covered by Medicare when the criteria are not explicitly described in the statute. Coverage determinations represent a major means by which medical necessity is determined by Medicare.
III. National Coverage Determinations
One way that Medicare decides whether a service will be covered is to issue a national coverage determination, or NCD. An NCD is a ruling by CMS that announces that Medicare has evaluated all of the research in the area and has decided in light of that research that Medicare will pay for a particular kind of service.
NCDs are frequently used with new treatments. For example, one diagnostic technology for which there is an NCD is MRI. When MRI technology was first being used clinically in the 1980s, there were questions about whether Medicare would cover it. The NCD was promulgated to clarify that MRI was Medicare-covered.
NCDs are also used to exclude Medicare coverage. A common area addressed by many NCDs is durable medical equipment (DME). NCDs about DME are compiled at http://www.cms.hhs.gov/manuals/pub06pdf/pub06pdf.asp. These listings state which DME items are Medicare-covered.
NCDs often go beyond merely stating what will be covered by Medicare and what will not be covered. They may describe the circumstances or criteria under which a service may or may not be covered by Medicare, or specify that a service is only Medicare-covered in the presence of certain conditions, while coverage is excluded for the same service for other diagnoses.
IV. Local Coverage Determinations and Local Medical Review Policy
At times, when a service has not been the subject of a NCD, Medicare carriers and fiscal intermediaries are allowed by the Medicare statute to issue their own coverage determinations that state whether Medicare will pay for particular service in the specific locality for which they process Medicare claims. These coverage determinations are called Local Medical Review Policy, or LMRPs. LMRPs can be confusing and difficult to understand because the concept of LMRPs can be seen as a way of observing that Medicare is not always a uniform program and sometimes the rules can be applied differently in different parts of the country.
LMRPs are promulgated for a number of different reasons. These include: (1) There is no NCD on a particular service, but on a local level, a decision has been made to pay or deny payment under Medicare for that service; (2) there is an NCD, but it is very broad, and on a local level, an LMRP is used by a Medicare carrier or fiscal intermediary to implement an NCD by describing in more detail the medical criteria that will guide decisions about a service; or (3) the carrier or fiscal intermediary issues an LMRP to give health care providers information about coding of services for billing purposes. LMRPs are important because fiscal intermediaries and carriers rely on them to decide whether or not they will allow Medicare payment.
V. Medicare's "Reasonable and Necessary" Standard
In discussing coverage determinations, it is important to keep in mind that the Medicare statute is written primarily in the negative, stating that Medicare will not pay for services that are not reasonable and necessary. Thus "reasonable and necessary" is the standard by which Medicare judgments are made about whether to make payment for care or services.
The statute makes two very important distinctions about "reasonable and necessary." The statute says that Medicare will not pay for services that are not reasonable and necessary either (1) for the diagnosis and treatment of illness or injury or (2) to improve the functioning of a malformed body member.
The important thing to remember is that the Medicare statute creates two distinct medical necessity criteria: 1) The service must be reasonable and necessary either to diagnose and treat illness or injury, or 2) the service must be reasonable and necessary to improve the functioning of a malformed body member. It is critical to a proper understanding of Medicare that if you are talking about diagnosis and treatment, the statute does not require improvement.
LMRPs contain the criteria used by carriers and fiscal intermediaries to flesh out the meaning of "reasonable and necessary."
VI. Erringer v. Thompson
In the past, advocates often found that when Medicare claims were denied, the reason for the denial was often unclear. The denial might have stated that the service was due to "insufficient data," or it might have said that "Medicare doesn't cover this" without giving an explanation. The Center for Medicare Advocacy discovered through litigation, in a case called Erringer v. Thompson # CV 01-112 TUC-BPV (D.Ariz.), that in many such cases, there was in fact an LMRP that dealt with whether Medicare would pay for a particular service for individual Medicare beneficiary. Very often, the LMRPs had been used automatically to deny coverage even when, in fact, the person met the criteria in the LMRP, but the beneficiary never knew about the LMRP.
In the case of Erringer v. Thompson litigation, once the LMRP was carefully examined, it turned out that Mr. Erringer did meet the criteria in the LMRP, and he was granted Medicare coverage. Another discovery made by the Center for Medicare Advocacy during the litigation was that since claims are filed electronically, it can be difficult to get personnel at carriers or fiscal intermediaries to actually review additional clinical records that treating physicians may wish to submit to get Medicare coverage and claim reimbursement when an LMRP is involved in coverage determinations. When claims are submitted electronically, it can be hard to get hard copy narrative clinical documents reviewed by a carrier or fiscal intermediary. Friendly contacts at carriers or fiscal intermediaries are helpful in this regard.
A partial settlement of the Erringer case provides that as of January 1, 2003, Medicare carriers and fiscal intermediaries must include a statement about whether an LMRP was relied upon to deny Medicare coverage in certain Medicare Summary Notices (MSNs) that deny Medicare coverage and, if an LMRP was used, a description of how the beneficiary can get a copy of that LMRP. This notice affords beneficiaries an opportunity to see how the LMRP applies to her case or what additional information the beneficiary might need to submit on an appeal to that claim. To view the CMS notice about the partial settlement, see http://cms.hhs.gov/erringersettlement.asp.
The denial notices direct beneficiaries to call 1-800-MEDICARE to get a copy of the applicable LMRP. SHIP programs need to be aware of these new notices because people who get MSNs stating that services were denied because of an LMRP may want background information about what this means and about how they can get help beyond the information they will get from 1-800-MEDICARE. The easiest way to get LMRPs is on the Internet, but beneficiaries who do not have Internet access or savvy or who do not understand them once they obtain an LMRP may need help from SHIPs.
There are over 8000 LMRPs. CMS has a searchable section on its Web site for coverage determinations at http://cms.hhs.gov/lmrp/default.asp. This Web page is searchable by subject and by state. Each carrier and fiscal intermediary has a Web site on which LMRPs can be searched. Another Web site, www.lmrp.net, contains LMRPs.
VII. Applying Medical Necessity Analysis to Typical Cases
A recent call to HAP from a local SHIP counselor seeking technical assistance illustrates these points. A daughter had called the counselor, asking for help with her 86-year-old mother. The mother had had a stroke a few weeks earlier and had gone from the hospital to a nursing home for rehabilitation therapy. After a several weeks of physical and speech therapy, which was covered by Medicare, the facility staff began to say: "Mom has reached a plateau in her therapy, and we cannot keep the Medicare coverage going unless she continues to make progress. When we stop the Medicare coverage, Mom will have to leave this facility." The daughter was frantic, believing her mother was not ready to return home. The SHIP counselor wanted some guidance because she had found it difficult in the past to help Medicare beneficiaries to retain therapeutic interventions in nursing homes when patients stopped making progress.
Ms. Gottlich's Analysis
"Plateau" is not a term found in the Medicare statute. It is a code for saying, "Mom is not improving..." the improvement standard is not applicable in this case, since the therapy is to treat a medical condition, the stroke, and not to improve the function of a malformed body member. Nothing in statute requires that Mom improve as she undergoes therapy for rehabilitation from her stroke. If the treating physician thinks that the skilled services Mom is receiving in the nursing home are useful to maintain her functioning or to prevent a decrease in her functioning, she should remain eligible for Medicare coverage for continued services for maintenance and prevention of deterioration as long as she requires skilled interventions.
The regulations for skilled nursing facilities state that a decision on Medicare coverage cannot be based upon a general "rule of thumb." You cannot say automatically that all 86-year-old women who have broken a hip or had a stroke and subsequently get physical therapy will stop improving after a defined time, such as three weeks of physical therapy, and therefore continued physical therapy for such patients can never satisfy the reasonable and necessary standard. An individualized assessment of each person must be undertaken to see whether each individual, given his/her unique circumstances, can still benefit from the skilled services. This assessment must include a professional clinical judgment as to whether the service can help maintain the person's level of functioning. The regulations allow services to be provided under Medicare to prevent deterioration or to maintain a person's capabilities.
The relevant Medicare regulation, 42 Code of Federal Regulations (C.F.R.) § 409.32(c) provides that "[e]ven if full recovery or medical improvement is not possible, a patient may need skilled services to prevent deterioration or preserve current capacities."
Because this is a case of care in a nursing facility, the key factor is that there must be a skilled service. The regulation requires that "... the skills of a therapist ... [must be] necessary to perform a safe and effective maintenance program." 42 C.F.R. Section 409.44 (c )(2)(iii). If maintenance therapy can be provided by an aide, it is not a skilled service. But if the maintenance therapy must be provided by or under the supervision of a skilled professional, then for Medicare coverage purposes, the maintenance therapy is a skilled service.
Question:
How can a SHIP bring this information to the administration of the nursing home when they "know" that Medicare "never" covers maintenance therapy? How can a SHIP tell the nursing home that without the continued therapy, mom will backslide, when SHIP staff, who are not for the most part-medically trained, advocate with health care providers. What can we do if we do not have the medical staff behind us?
Answer:
Consider the importance of allying with the treating physician and encourage physicians to use their best clinical judgment about how long therapy can help skilled nursing facility residents. Use the law, regulations, and coverage determinations to dispel misunderstandings about Medicare law and to clarify what the law actually says. This can strengthen the presentation we can make to skilled nursing facility staff and to physicians.
Medicare law provides coverage for maintenance therapy if the therapy must be provided by or under the supervision of skilled personnel. The Health Assistance Partnership did a training session for Pennsylvania APPRISE in October, 2002, which, in part, addressed the issue of Medicare coverage of skilled care and the regulations providing for coverage of maintenance therapy.
Question:
If a skilled nursing facility refuses to continue the Medicare coverage and you need to ask for a demand bill submission in order to preserve the right to appeal the Medicare discontinuance, the resident gets no grace days of continued Medicare coverage before the actual termination of care, as you would in a the case of a discharge from a hospital. How can we advise families about these difficult and stressful situations?
Answer:
You must find another payment source to keep Medicare coverage in a larger context that includes both short-and long-term financial and care planning. This typical scenario highlights the need to think about how to integrate Medicare counseling with the bigger picture, including self-pay options, long term care insurance, and Medicaid, since Medicare covers a maximum of 100 days.
Question:
Families become discouraged because they cannot afford to pay the nursing home pending an investigation or an appeal without knowing if they will ultimately win.
Answer:
We can use Medicare rules, including coverage determinations, to try to avert premature Medicare discontinuances by using powers of persuasion to assist Medicare providers in how the Medicare law can help beneficiaries obtain needed care. Backed by knowledge of coverage determinations, the law and regulations can be used as effective advocacy tools. Sometimes these tools do not work, and then it is important to know what options are available through self-pay, long term care insurance, or Medicaid in order to plan for the future and to help clients to understand their rights.
Question:
Getting the doctor on your side is always beneficial. What if the doctor's opinion is contrary to the therapist's opinion? What if the therapist declines to provide therapy? To complicate this picture, what about Medicare coverage for rehabilitation therapy in other settings, such as outpatient therapy?
Answer:
Under the Medicare rules, the therapist works pursuant to the doctor's orders. You can send the therapist copies of the regulations and manual provisions. Also, if you offer training to nursing facility and home health agency staff, you can show the professionals what the law requires.
For therapy in other settings, the Medicare standards differ. In the skilled nursing facility and home health contexts, advocates succeeded in persuading CMS to insert language into the regulations and manuals to demonstrate that maintenance therapy is clearly Medicare-covered. The regulatory language is not as clear in the outpatient therapy setting. This is where LMRPs can wreak havoc because they are inconsistent and very often include an improvement standard and do not expressly include Medicare coverage for maintenance therapy. The Center for Medicare Advocacy is working towards convincing CMS to change its rules on outpatient therapy to be consistent with the skilled nursing facility and home health therapy regulations. In the meantime, for outpatient settings, you would have to argue that an LMRP is inconsistent with the Medicare statute. These technical legal arguments are not of any practical significance to patients until an appeal has reacted an administrative law judge hearing, and that could be as long as a year after the denial of coverage.
Question:
Do LMRPs affect mental health coverage?
Answer:
In many parts of the country, LMRPs dictate the number and frequency of psychotherapy visits Medicare will cover. Generally, LMRPs will say that no more than 20 psychotherapy visits are covered by Medicare without additional documentation. It can help the therapist or referring physician to know what the relevant LMRP says about what additional documentation is necessary to obtain additional visits.
Question:
Do LMRPs ever conflict in different parts of the country? Isn't Medicare a national program?
Answer:
LMRPs do conflict. Some regions may cover a particular service, and others may not. There are instances in which an LMRP will provide for coverage for something in one location that would be denied elsewhere in the country, due to a conflicting LMRP. This is a little-known fact about Medicare coverage.
