In July,1998 revisions were made to the federal regulations which made significant changes to the Medicare skilled nursing facility level-of-care requirements. The revisions created a lack of clarity about what constitutes skilled nursing and, therefore, about a beneficiary's ability to receive Medicare coverage for skilled nursing facility care. This confusion was resolved, one year later, when the important provisions defining skilled nursing were reinstated into the federal regulations. 64 FR 41670 (July 30, 1999).
The 1998 changes had eliminated "overall management and evaluation of a patient's care plan, observation and assessment of the patient's changing condition, and patient education services@ from the list of examples of skilled nursing services which, if delivered on a daily basis, qualify a patient for Medicare skilled nursing facility (SNF) coverage. 42 CFR '409.33(a)(1)-(3). These services are fundamental to basic nursing practice and, therefore, should have remained as a basis for determining a skilled nursing facility level of care. (See 42 CFR Section 409.32; The Lippincott Manual of Nursing Practice, 1996, page 5.) The changes resulted in the identification of only certain specific examples of nursing care, such as Foley catheter changes and intravenous or intramuscular injections, as skilled services which could trigger Medicare coverage for SNF care.
On April 28, 1999 HCFA Administrator Nancy-Ann Min DeParle responded to an inquiry regarding this issue from the Center for Medicare Advocacy. Administrator DeParle confirmed that HCFA continued to consider these services skilled nursing care. In her letter, which is available from the Center, Ms. DeParle wrote:
…we did not intend that our deletion of care plan management/evaluation, observation/assessment, and patient education would indicate that we no longer regard these services as appropriate examples of skilled care. Rather, we made this revision in the belief that such services need no longer be separately identified in the administrative criteria since they are already effectively captured by the clinical proxies utilized in the [new] Resource Utilization Groups [RUGS], version III [payment] system of resident classification used under SNF PPS.
Fortunately for beneficiaries, these provisions were reinstated in the federal regulations issued in July, 1999. In reinstating the provisions the Secretary noted:
Our reason for deleting the explicit references in the regulations to management and evaluation, observation and assessment, and patient education was not that they no longer represented appropriate examples of skilled care, but rather, because we believed that these separate references were no longer necessary in view of the clinical indicators that have been incorporated into the upper 26 RUG-III groups. However, in order to avoid possible confusion on this point, we are accepting the commenters= suggestion to reinstate these categories as specific examples in the SNF level of care regulations. 64 FR 41670 (July 30, 1999).
The three reinstated regulation provisions incorporate some of the most critical nursing activities for invoking Medicare coverage. They are as follows:
1. Overall management and evaluation of an individual's care plan ( 42 CFR 409.33(a)(1));
2. Observation and assessment of the patient's changing condition. (This includes identifying and evaluating the patient's need for modification of treatment or for additional medical procedures until the condition stabilizes.) ( 42 CFR 409.33(a)(2));
3. Patient education services ( 42 CFR 409.33(a)(3 ) ).
Advocates should remember these important coverage rules and the administration's commentary when seeking benefits for skilled nursing facility patients in order to insure that they obtain the Medicare coverage to which they are entitled. The regulations and related commentary, quoted above, should be brought to the attention of hospital discharge planners, SNF providers, fiscal intermediaries, administrative law judges, and others interested in Medicare skilled nursing facility determinations. This is particularly true when advocating on behalf of patients whose need for daily skilled nursing services may not be identified through the process of establishing a RUGS classification.