- Congress Repeals Medicare Outpatient Therapy Caps, Strengthening the Jimmo Settlement Agreement
- New Toolkit! Medicare Home Health Coverage & Jimmo v. Sebelius
- Congratulations, Team Gleason, on the Passage of the Steve Gleason Enduring Voices Act
- Health Care Sabotage Continues
5th Annual National Voices of Medicare Summit &
This year's Summit will focus on health care activism, civic engagement, and efforts to preserve (and enhance) the Affordable Care Act, Medicare, and Medicaid. Senators Chris Murphy and Jay Rockefeller will be present to help participants think about building a healthy future for all Americans.
On February 9, 2018, the Bipartisan Budget Act of 2018 was signed into law by the President. The budget act includes a “health extenders” package that, among other changes, permanently repeals annual Medicare payment limits (or caps) on outpatient physical, speech, and occupational therapy services. Pursuant to the Balanced Budget Act of 1997, Medicare Part B outpatient therapy has been subject to payment caps that required therapists to seek “exceptions” in order to continue providing care to Medicare beneficiaries once those caps were reached. Medicare beneficiaries were often left with uncertainty as Congress frequently wrestled with extending the exceptions process over the last twenty years, as was the case this year when the exceptions process expired on December 31, 2017.
Although the 2018 budget act repeals outpatient therapy caps, it still requires providers to continue using a modifier code when submitting claims above $2,100 annually for the purposes of “indicating that such services are medically necessary as justified by appropriate documentation in the medical record involved.” The budget act also provides the Centers for Medicare & Medicaid Services (CMS) with five million dollars a year for nationwide targeted medical reviews of claims that surpass $3,000. However, the American Physical Therapy Association (APTA) clarifies that “[c]laims that go above $3,000 will not automatically be subject to targeted medical review. Instead, only a percentage of providers who meet certain criteria will be targeted, such as those who have had a high claims denial percentage or have aberrant billing patterns compared with their peers.” Further, the American Occupational Therapy Association (AOTA) notes, “the therapy cap will never again put beneficiaries at risk for being denied essential occupational therapy services.”
The repeal of the therapy caps bolsters the implementation of the court-approved settlement agreement in Jimmo v. Sebelius, No. 11-cv-17 (D. VT), also known as the “Improvement Standard” case. The Jimmo Settlement – reached by the Center for Medicare Advocacy and Vermont Legal Aid with CMS – required CMS to confirm that “[s]killed care may be necessary to improve a patient’s condition, to maintain a patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.” Although the Jimmo Settlement protects all Medicare beneficiaries who need ongoing maintenance therapy services, including those with chronic conditions, beneficiaries still faced the annual therapy caps.
The Jimmo Settlement, along with the repeal of the outpatient therapy caps, confirms that beneficiaries in need of ongoing therapy should no longer need to worry about these arbitrary barriers to care.
- To read more about the Jimmo Settlement Agreement, please visit: https://www.medicareadvocacy.org/medicare-info/improvement-standard/.
- To read the Bipartisan Budget Act of 2018, please visit: https://www.congress.gov/bill/115th-congress/house-bill/1892/text.
 Bipartisan Budget Act of 2018, H.R. 1892, 115th Cong. 50202 (2018) (to be codified at 42 U.S.C. § 1395l(g)).
 A Permanent Fix to the Therapy Cap: Improved Access for Medicare Patients Comes With Pending APTA-Opposed Cut to PTA Payment, PT In Motion, APTA (Feb. 9, 2018), http://www.apta.org/PTinMotion/News/2018/02/09/TherapyCapRepeal/.
 Amy Lamb, Therapy Cap Repealed After 20 Years: Message from AOTA President, AOTA (Feb. 9, 2018), https://www.aota.org/Advocacy-Policy/Congressional-Affairs/Legislative-Issues-Update/2018/therapy-cap-repealed-signed-into-law-aota-president-message.aspx?promo_name=stopped-the-cap&promo_creative=Advocacy-Policy&promo_position=hero.
 CMS Transmittal 179, Pub 100-02, 1/14/2014, available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R179BP.pdf.
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Jimmo v. Sebelius, No. 11-cv-17 (D. VT), is a nationwide class-action lawsuit brought on behalf of Medicare beneficiaries who received care in skilled nursing facilities, home health care, and outpatient therapy and who were denied Medicare coverage on the basis that they were not improving or did not demonstrate a potential for improvement (known as the “Improvement Standard). On January 24, 2012, the U.S. District Court for the District of Vermont approved a Settlement in Jimmo between attorneys for the Jimmo plaintiffs (the Center for Medicare Advocacy and Vermont Legal Aid) and the Centers for Medicare & Medicaid Services (CMS).
Unfortunately, unfair denials still happen.
The Center for Medicare Advocacy provides this Toolkit to help Medicare beneficiaries, their families and advocates respond to unfair Medicare denials. The Toolkit includes self-help materials to advocate for home health care that has been denied by providers, Medicare Advantage plans, and/or traditional Medicare.
Download the toolkit
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The Steve Gleason Enduring Voices Act makes permanent the changes initiated by the Steve Gleason Act of 2015.
This Act makes permanent the removal of the rental cap for durable medical equipment under the Medicare program with respect to Speech Generating Devices. Doing so means that Medicare beneficiaries may keep these devices for as long as they need them, regardless of care setting – no more losing a highly personalized Speech Generating Device should one need to enter a skilled nursing facility, hospice or hospital.
Speech Generating Devices are a lifeline. This law will provide peace of mind for extremely vulnerable Medicare beneficiaries. The Center is honored to have played a small part in working to get this legislation passed, and looks forward to more work with Team Gleason in the future.
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The fiscal year 2019 budget released this week couldn’t make the Administration’s priorities and values any clearer. The Budget seeks to repeal the Affordable Care Act (ACA) and replace it with something similar to the failed Graham-Cassidy plan. This plan was roundly rejected, as the American people recognized it would raise costs and deny coverage for millions of consumers.
Nonetheless, the HHS budget summary calls for implementing this plan “as soon as possible.” Such a proposal will be harmful to millions of low-income older people and people with disabilities who rely on Medicaid and the ACA’s coverage protections. The HHS summary also supports Cassidy-Graham’s “comprehensive Medicaid reform” and repealing the ACA’s Medicaid expansion. Any plan that fails to protect people with pre-existing conditions, allows states to gut ACA protections, and makes devastating cuts to Medicaid is unacceptable and certainly must not be implemented “as soon as possible.”
In HHS’ recently released, 2017 “accomplishment report,” ACA sabotage is celebrated as an “accomplishment.” The Report states that CMS “conducted a successful, consumer-friendly open enrollment period at significantly lower cost than in previous years, attracting similar levels of enrollment with more focused investments in marketing.” During open enrollment, we highlighted the Administration’s less than “consumer friendly” actions such as cutting the enrollment period in half; slashing funding for enrollment assistance, refusing to participate in enrollment events; shutting down healthcare.gov during critical times and refusing to pay cost-sharing reductions which caused uncertainty in the market. The enrollment period was as successful as it was thanks to the hard work of the people who – despite roadblocks from the Administration – worked to enroll people and protect our care.
The effect of healthcare sabotage is still being felt at the state level. The states of New York and Minnesota are suing the Administration for cutting funding for state-based programs that provide health coverage for low-income people. The states received notice that funding for their ACA authorized programs would be cut just one day before it happened. The New York Attorney General is quoted as calling the cuts “a cruel and reckless assault…”
The constant undermining of people’s health care coverage is unacceptable and should certainly not be considered an “accomplishment.” And by no means should efforts to undermine the health care of Americans be expanded as proposed in the President’s budget.
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