{"id":659,"date":"2016-10-27T20:48:33","date_gmt":"2016-10-28T00:48:33","guid":{"rendered":"http:\/\/www.eclipsepracticemanagementsoftware.com\/blog\/?p=659"},"modified":"2016-10-27T21:01:00","modified_gmt":"2016-10-28T01:01:00","slug":"medical-necessity","status":"publish","type":"post","link":"http:\/\/eclipsepracticemanagementsoftware.com\/blog\/2016\/10\/27\/medical-necessity\/","title":{"rendered":"A Federal Judge\u2019s Ruling: CMS & The Maximum Improvement Standard"},"content":{"rendered":"

On the one hand, a new DHHS OIG report concludes that chiropractic care is medically unnecessary after the first 30 treatments. By that point, DHHS insists, maximum improvement has been reached. And on the other? Hmmm\u2026<\/p>\n

In 2011, a class action suit (Jimmo vs. Sebelius) was filed by a combination of Medicare beneficiaries & national organizations in Vermont federal court. The suit alleged that DHHS \u201cimposed a covert rule of thumb that operated as an additional and illegal condition of coverage, resulting in the termination, reduction, or denial of coverage for thousands of Medicare beneficiaries annually<\/em>.\u201d<\/p>\n

The lawsuit contended that an \u201cImprovement Standard\u201d was universally applied to deny coverage if a patient\u2019s condition hadn\u2019t improved. It further contended that, as a consequence, Medicare contractors & claims adjudicators were denying coverage given the expectation that the patient was deemed unlikely to improve further \u2013 even though care might be necessary to prevent further deterioration and\/or maintain the patient\u2019s current condition<\/em>.<\/p>\n

What prompted this class action lawsuit? One plaintiff needed long term physical therapy following a series of mishaps that began with a broken femur. After months of therapy, the patient\u2019s daughter received a letter stating her mother \u201chas reached her highest practical level of independence.\u201d But the family believed she needed continued therapy to maintain the progress she\u2019d already made.<\/em><\/p>\n

Does this sound familiar if you\u2019re a chiropractor? Chiropractors nationwide should recognize this as a denial based on \u201cmedical necessity\u201d \u2013 which is just one of many phrases that allude to the same concept:\u00a0 the patient isn\u2019t going to further improve<\/em>. So, a dichotomy. The new DHHS concept of 30 maximum treatments vs. a ruling in federal court about \u201cmaintenance care.\u201d<\/p>\n

In January 2013, as part of a settlement agreement in Jimmo vs. Burwell, (that\u2019s Department of Health & Human Services Secretary Burwell), the Court required that DHHS educate its frontline contractors & providers that the \u201cImprovement Standard\u201d was illegal. However, as time passed, it appeared that CMS wasn\u2019t upholding its part of the bargain. Plaintiff\u2019s attorneys returned to the courts to seek enforcement of the original agreement. In August 2016, Chief Judge Christina Reiss of the United District Court in Vermont ruled that CMS did have to launch an improved educational campaign. You can read the CMS fact sheet here<\/a>.<\/p>\n

Now, this suit wasn\u2019t filed by chiropractic patients. Regardless, as the 2013 class-action lawsuit settlement specified: Medicare must cover skilled care and therapy when they are \u201cnecessary to maintain the patient\u2019s current condition or prevent or slow further deterioration.<\/em>\u201d This is not a narrowly worded opinion that specifies ongoing physical therapy in a specific instance. Instead, it defines a generic concept of ongoing therapy to maintain Activities of Daily Living.<\/p>\n

So, we have the settlement agreement & most recent ruling by a federal judge. And then we have the new OIG report. According to the report, Medicare spent $359 million covering \u201cunnecessary\u201d chiropractic care. I\u2019m not sure who defined what \u201cunnecessary\u201d refers to in this context, but I\u2019d bet it wasn\u2019t the same context applied by the federal court in August 2016.<\/p>\n

Patients have always had the right to appeal coverage denials. And they also have the same odds of prevailing they\u2019ve always had:\u00a0virtually non-existent. Is there room to get further, necessary care approved? We don\u2019t know until someone starts to push back against these barriers. For further reading on these topics:<\/p>\n