Administrative Law Judge Rules Medicare Covers Outpatient Therapy to Maintain Function, Indefinitely if Needed

A young man who suffered a traumatic brain injury (TBI) following a fall in 2008 was receiving outpatient physical therapy three times a week.  While his therapy was originally covered by his Medicare Advantage (MA) plan, the plan denied further coverage of his therapy, contending that the recovery period for TBI had passed and that a maintenance program at home or the gym could be implemented.  The denial was affirmed at the next level of appeal.  In a January 2018 decision, however, an Administrative Law Judge (ALJ) reversed the denials and issued a decision fully favorable to the beneficiary.[1]  The MA plan has now filed a notice of appeal with the Medicare Appeals Council.

Relying on Jimmo v. Sebelius,[2] the ALJ held that the plan cannot limit Medicare coverage to patients who are expected to recover in a reasonable period of time.  The factual issue is “whether the services are reasonable, effective treatments for the patient’s condition and require the skills of a therapist.  MBPM, Ch. 15, Sec. 220.2(c).”[3]  The ALJ gave great weight to the opinion of the treating physician as the person “in the best position to determine what treatments are medically necessary for his patient.”[4]  Both the therapist and the physician wrote letters describing in detail the patient’s specific need for therapy services.[5]  The therapist cited a published article finding that patients with brain injuries can continue to make gains many years after the injury.[6]

The ALJ noted that the Medicare Advantage physicians neither examined the beneficiary nor conducted any tests, “so therefore those physicians are not neutral uninterested witnesses.”[7]  Moreover, the physician testifying for the MA plan at the hearing “is actually a full time employee of [the MA plan provider] and he admitted that he had not reviewed all of the medical records, including all of the Physical Therapy notes prior to testifying at the hearing that the Enrollee only needed therapy visits once a month.”[8]

The Medicare Advantage plan initially denied the beneficiary’s pre-authorization request for therapy based on its view that the beneficiary did not require the skills of a therapist.  At the hearing, the MA plan’s representative testified that a change in coverage, effective January 2017, added a requirement of expected recovery.[9]  The ALJ ruled that this standard violates Jimmo and that the plan “does not place any limits on how many Physical Therapy visits an Enrollee may receive, nor does the Plan limit the dollar amount that can be paid for an Enrollee’s Physical Therapy.”[10]  Accordingly, based on both the Plan rules and Jimmo, the ALJ found that the young Medicare beneficiary could continue to receive therapy “indefinitely.”[11]

T. Edelman, January 2018