Home care groups see bad trend in Medicare ruling

By MATTHEW HAY

HHBR Washington Correspondent

WASHINGTON — The Health and Human Services (HHS; Washington) Medicare Appeals Council (MAC) last month overturned a decision by an Administrative Law Judge (ALJ) regarding skilled nursing services provided to a Medicare beneficiary. Far from being viewed as an isolated decision by the MAC, some home care representatives see the decision as part of a larger and more ominous pattern on the part of the Health Care Financing Admin istration (HCFA; Baltimore) to eliminate the Medicare home health benefit for long term, medically complex patients.

"It is just outrageous," American Federation of Home Health Agencies (AFHHA; Silver Spring, MD) Executive Director Ann Howard told HHBR. "HCFA is going to remove the medically complex, longer term patients by hook or by crook. They are going to remove them through the per-beneficiary limit and if any of them had the good fortune to find an agency that was willing to continue providing them services they are going to remove them through this policy."

In three decisions, an ALJ had previously found that the daily skilled nursing visits rendered to a Medicare beneficiary in her home between Dec. 1, 1995, and Feb. 29, 1996, were medically reasonable and necessary and qualified for Medicare coverage. The services had been ordered by a physician pursuant to valid plans of care and certified by the beneficiary’s treating physician to be necessary.

The MAC reversed these decisions, however, on the basis that the daily services which the beneficiary received during this period were "not intermittent’ within the meaning of section 1814 (a) (2) (C) of the Social Security Act" and "were not realistically expected to end at any finite and predictable point in time.

"The provider has asserted that the plans of treatment document endpoints to daily care because the physician ordered daily care only for the 60-day period covered by each plan," the MAC noted. It argued, however, that "none of the plans establish that a finite and predictable end point to the daily catheterizations was expected, let alone predictable.

"There is no evidence that the provider here contacted the intermediary, provided supporting documentation, or attempted to justify that unusual circumstances existed here," the MAC added. "Nor is there any evidence that would support a finding that such a projection would have been realistic during the period at issue, given the beneficiary’s prognosis."

Since the beneficiary did not receive any other services during this period that would have qualified her for home health services such as physical or speech therapy or continued occupational therapy, the MAC ruled that Medicare should not pay for these home health services.

"The provider knew or should have known that the beneficiary was not eligible for home healthcare services and is liable for the cost of the care under section 1979 of the Act," the MAC concluded. It found no evidence, however, that the beneficiary "knew or had reason to know that she was not eligible for the services" and ruled that she is not liable for the cost of the services.

"This is a 100-year-old stroke patient who desperately needs the services and who without the services clearly will either die or will go into an institutional setting," said AFHHA’s Howard. "I don’t think there is anything in the Medicare law that says there has to be an endpoint to the services or that home health is only for beneficiaries who are going to recuperate within a predictable period of time. This is HCFA policy now, and it’s very scary."