Elizabeth Hogue on the Proposed Settlement That May Extend Coverage to More Medicare Home Health Patients

A proposed settlement in a nationwide class-action lawsuit may provide coverage for skilled nursing care and therapy services to Medicare beneficiaries who do not show a likelihood of medical or functional improvement. The lead plaintiff in the case is Rosalie Glenda R. Jimmo of Bristol, Vermont. She has been blind since childhood and her right leg was amputated due to complications of diabetes. She is in a wheelchair. Ms. Jimmo is joined in the lawsuit by another plaintiff, Ms. Rosalie J. Berkowitz of Stamford, Connecticut. Ms. Berkowitz has multiple sclerosis. The Medicare program denied coverage for skilled nursing and physical therapy on the grounds that she showed no improvement as a result of these services.

The proposed settlement means that the Centers for Medicare and Medicaid Services (CMS) will rewrite the Medicare coverage manual to allow for payment for services if they are needed to maintain the patient’s current condition, or to prevent or slow further deterioration, even if patients’ conditions are not expected to improve. This significant change in coverage may mean that many more patients may be eligible for the Medicare home health benefit. The proposed settlement was negotiated with attorneys from both the Justice Department and the Department of Health and Human Services (HHS). The proposed settlement has been submitted to the judge in the case in the Federal District Court in Vermont and is now awaiting approval. If approved, the changes in coverage will apply to both fee for service Medicare and Medicare Advantage Care patients.

If the proposed settlement is approved by the court, the court will certify a nationwide class of more than 10,000 Medicare beneficiaries.  The members of this class’ claims for services under the Medicare Program were denied before January 18, 2011, when the lawsuit was filed. The plaintiffs in the lawsuit argued that statutes and regulations governing the Medicare program do not require beneficiaries to show that their conditions are likely to improve. Provisions of the Medicare manual and other guidelines of the Medicare program used by Medicare contractors to process and pay claims erroneously establish more restrictive standards that were never intended.

If finalized, this change in policy is likely to be welcomed by home health agencies. Over a period of many years, agencies have been stymied in their efforts to provide services to patients like the plaintiffs and similar patients across the country. The historic lack of coverage for services to such patients has caused home health agencies to confront difficult legal, economic, and ethical dilemmas. Even if agencies could afford to continue to provide substantial free services to such patients, it appeared that the provision of free services violated applicable prohibitions of the Office of Inspector General (OIG) of HHS regarding the provision of free services to patients that exceed $10.00 at a time or $50.00 in the aggregate during a calendar year. Agencies would welcome relief from difficult dilemmas and an opportunity to provide care to as many patients as possible.

Stay tuned for news about whether this proposed settlement is finalized and resulting changes in coverage!

Contact Elizabeth E. Hogue, Esq. at (877) 871-4062 or via email by clicking here. Click here to follow Elizabeth Hogue on Twitter!

© 2012 Elizabeth E. Hogue, Esq. All rights reserved. No portion of this material may be reproduced in any form without the advance written permission of the author.

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