Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

July 2016 – Proposed Medicare Appeals Rules & Other Issues

Print Friendly, PDF & Email

PROPOSED RULE TO REVISE MEDICARE ADMINISTRATIVE APPEALS PROCESS

As discussed during previous Alliance calls, there is a significant backlog of cases at the third and fourth levels of the Medicare administrative appeals process, the administrative law judge (ALJ) stage administered by the Office of Medicare Hearings and Appeals (OMHA), and the Medicare Appeals Council (Council) administered by the Departmental Appeals Board, respectively.  There have been various proposals to address this backlog, also discussed on previous calls, including those outlined in recent budgets offered by Obama Administration, and a bill introduced by the Senate Finance Committee (see, e.g., our June 2015 Alliance brief at: https://www.medicareadvocacy.org/june-2015-reforming-medicares-appeals-system-other-issues/).   

On June 28, 2016, the Department of Health and Human Services (HHS) issued a notice of proposed rulemaking (published in the Federal Register on July 5th), which, according to an HHS blog post, is part of a “three-pronged strategy to address the backlog:

1)    Invest new resources at all levels of appeal to increase adjudication capacity and implement new strategies to alleviate the current backlog.

2)    Take administrative actions to reduce the number of pending appeals and encourage resolution of cases earlier in the process.

3)    Propose legislative reforms that provide additional funding and new authorities to address the appeals volume.”

As described in the same blog post, through the proposed rule “HHS is proposing additional administrative action to: expand the pool of available OMHA adjudicators; increase decision making consistency among the levels of appeal; and improve efficiency by streamlining the appeals process so less time is spent by adjudicators and parties on repetitive issues and procedural matters. The proposed rule is part of the second prong of our strategy.”

The Center is currently reviewing the proposed rule, and plans to submit extensive comments.  Our overarching, initial concerns with the proposed rule include:

  • Efforts to increase decision making consistency among the levels of appeal
    • As discussed during previous Alliance calls, our experience shows that the high rate of coverage denials upheld at the first two levels of appeal often amount to “rubberstamp” decisions; any reforms that drive the more independent and thorough review at the ALJ level to be more consistent with the lower levels of review – rather than the opposite – could further infringe on beneficiaries’ ability to obtain due process
  • Select Medicare Appeals Council decisions – at the discretion of the Chair of the Departmental Appeals Board – would be designated a “final decision of the Secretary” and considered precedential
    • This could result in restrictions in coverage for needed items and benefits to which Medicare enrollees are entitled by law

The proposed rule is found at 81 Fed Reg 43790 (July 5, 2016): https://www.federalregister.gov/articles/2016/07/05/2016-15192/medicare-program-changes-to-the-medicare-claims-and-entitlement-medicare-advantage-organization.

  • Comments are due August 29, 2016.

OBSERVATION STATUS

            Advocacy Update

The coalition of national organizations supporting the Improving Access to Medicare Coverage Act of 2015 (H.R. 1571/S. 843), which would count all time spent in the hospital towards the 3-day inpatient hospital stay requirement for Medicare coverage of skilled nursing facility care, has grown to 29 members.  See: https://www.medicareadvocacy.org/wp-content/uploads/2016/07/05.09.16-Observation-Stays-Coalition-One-Pager.pdf.

NOTICE Act and the MOON NOTICE – Effective August 2016

As discussed on the last Alliance call, CMS issued proposed rules that announced how CMS intends to implement the Notice of Observation Treatment and Implication for Care Eligibility Act (NOTICE Act).   A final rule has not yet been issued. Effective August 6, 2016, the NOTICE Act requires that hospitals provide written and oral notice, within 36 hours, to patients who are in observation or other outpatient status for more than 24 hours.  The notice must explain the reason that the patient is an outpatient and describe the implications of that status both for cost-sharing in the hospital and for subsequent “eligibility for coverage” in a skilled nursing facility (SNF).

In the proposed rules, CMS announces that it will require hospitals to use a new standardized notice, the Medicare Outpatient Observation Notice (MOON), which it has submitted to the Office of Management and Budget for approval.   As discussed in our April 27 Alert, the Center has significant concerns about the proposed rules relating to the notice required by this Act, including:

  • The proposed rule does not require the hospital to explain in the MOON the specific reason the patient is being considered an outpatient;
  • While all Medicare notices of coverage determinations other than the MOON give beneficiaries an opportunity to appeal to Medicare for a determination of coverage, only the MOON defines the coverage issue as non-appealable;
  • The MOON will not be required for patients whose hospitals choose not to code their “outpatient” Medicare bills as Observation Status; about half of long-stay outpatients are not considered observation status, however, solely because the hospital chose not to bill Medicare for observation hours (the consequences for patients is the same: whether the hospital billed Medicare for observation hours or not, the patient’s post-hospital care in the SNF is not covered because the patient was classified as an outpatient by the hospital). 

The MOON notice (CMS Form Number CMS-10611) can be found here:  

https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing-Items/CMS-10611.html?DLPage=1&DLEntries=10&DLSort=1&DLSortDir=descending

The proposed rules, CMS-1655-P, is at 81 Fed. Reg. 24945 (April 27, 2016), available at https://www.gpo.gov/fdsys/pkg/FR-2016-04-27/pdf/2016-09120.pdf.

The Center’s comments to the proposed rule, filed on June 16, 2016, are available at https://www.medicareadvocacy.org/further-center-comments-on-the-notice-act-june-2016/.

MEDICARE COVERAGE EXPANSION UPDATES

On June 7, 2016, Rep. Jim McDermott (D-WA), Ranking Member of the House Ways & Means Health Subcommittee, introduced the Medicare Dental, Vision, and Hearing Benefit Act of 2016 (H.R. 5396).  While the bill is unlikely to move in the near term, it highlights some of Medicare’s major coverage gaps and provides an outline for expanding Medicare coverage to include vision, hearing and dental services and equipment.

Oral Health Care

As discussed during the last Alliance call, the Center for Medicare Advocacy firmly believes that CMS has the legal authority under the Medicare statute to cover medically necessary oral health care – that is, treatment deemed necessary by a physician when a patient’s medical condition is or will likely be complicated by an untreated oral health problem.

As this position gains more momentum among oral health advocates, the Center continues to push for such coverage now, along with working in coalition with others to push for legislation that would provide broader routine, or preventive care, as contemplated by Rep. McDermott’s bill.

Audiology

On June 23, 2016 the Center co-sponsored a press and advocates’ briefing with the National Committee to Preserve Social Security and Medicare (NCPSSM) to discuss the need for audiology coverage in Medicare (see: https://www.medicareadvocacy.org/advocacy-organizations-health-experts-and-elected-officials-call-for-medicare-to-cover-hearing-services/

The briefing highlighted a June 2016 report from the National Academies of Sciences, Engineering, and Medicine titled Hearing Health Care for Adults: Priorities for Improving Access and Affordability which established hearing loss as a significant public health priority. (The report is available here: http://nationalacademies.org/hmd/reports/2016/Hearing-Health-Care-for-Adults.aspx.)   Frank R. Lin, M.D., Ph.D, a co-author of the National Academies’ report, discussed that even mild hearing loss has been shown to double the risk of dementia. Further, hearing loss is directly related to a variety of cognitive impairments, isolation, depression, and increased risk for falls.

The briefing also highlighted Rep. McDermott’s bill, referenced above, (with comments from the Congressman) and the Medicare Hearing Aid Coverage Act of 2015 (H.R. 1653) introduced by Rep. Debbie Dingell (D-MI) (with additional comments from Rep. Rosa DeLauro (D-CT).

PROPOSED RULE: DME ACCESS FOR DUALLY ELIGIBLE PEOPLE

As discussed during the last Alliance call, there is a serious and persistent obstacle to obtaining durable medical equipment (DME) among people with Medicaid and Medicare benefits. While having both types of coverage should enhance benefits, the logistical problems created by the misalignment of Medicare and Medicaid coverage lead to barriers in accessing needed care among vulnerable older adults and people with disabilities.

On June 30, 2016 the Centers for Medicare & Medicaid Services (CMS) published a proposed rule primarily focused on End Stage Renal Disease (ESRD) which includes a separate request for information about the difficulties of dually eligible people to obtain Durable Medical Equipment (DME). The request seeks information about the problem, as well as potential solutions.

The Center will respond to the request for information regarding access to DME for dually eligible people. We encourage other beneficiary advocates to do so as well, and to contact us if we can help. CMS seeks specific examples of problems, as well as specific solutions. The Center’s response will include a discussion of:

  • The misalignment of coverage and payment procedures in Medicare and Medicaid that lead to denials and delays of important equipment for this vulnerable population. Generally Medicare provides approval or denial only after delivery of the DME. Without the delivery of the DME to trigger a Medicare coverage decision, suppliers are usually unable to bill Medicaid, because State Medicaid agencies generally require that a bill be submitted first to Medicare. Only after Medicare has rejected the claim or paid its share will Medicaid process a payment. Thus, suppliers do not have assurance that the DME will be covered by Medicare, yet they do not have the ability to bill Medicaid until they have a Medicare decision. This often results in suppliers refusing delivery of DME because they worry they will not be paid by either program.
  • The mismatch between Medicaid and Medicare suppliers, and beneficiary access difficulties; problems with repairs for equipment; delays; and how the competitive bidding process may be affecting availability of suppliers. 
  • The challenges created by the intersection of the two programs. We often hear about problems that begin during the transition from having only Medicaid to also having Medicare coverage.
  • Some promising practices that have worked well to align the two programs. These include a Medicaid prior authorization system in Connecticut that provides suppliers with Medicaid prior authorization – and dually eligible beneficiaries with better access to DME. With assurance that the DME will be covered by Medicaid if Medicare is denied, suppliers are more willing to deliver the necessary DME.

For more information see 81 FR 42801 (June 30, 2016); Request for information (Section IX. Access to Care Issues for DME, page 42864-5.): https://www.federalregister.gov/articles/2016/06/30/2016-15188/medicare-program-end-stage-renal-disease-prospective-payment-system-coverage-and-payment-for-renal

  • Comments are due August 23, 2016.

ADMINISTRATION ON COMMUNITY LIVING GRANT – FOR MEDICARE BENEFICIARIES UNDER AGE 65

An update on the activity generated by Center’s Administration for Community Living grant to expand SHIP/SMP outreach opportunities to Medicare beneficiaries Under Age-65:

The Center has a web-page on the Center’s website (www.MedicareAdvocacy.org) dedicated to issues for people who are under the age of 65 and who are eligible for Medicare benefits. This web-page is available to SHIPs and SMPs and all beneficiaries and advocates of beneficiaries who are looking for information to Medicare beneficiaries who are under age 65. Currently the web-page includes resources and events that will benefit this hard-to-reach population. It also includes information on past webinars and upcoming webinars on topics of particular interest or need for individuals who are under 65 and eligible, or becoming eligible, for Medicare.

Center events and information links for this project are also posted to the SHIP and SMP libraries.

The next webinar will be held on Wednesday, July 27th. Center Executive Director Judy Stein will present on Medicare Home Health Coverage for People with Chronic Conditions (Including a Jimmo update). Please register here.

The webinar entitled “An Overview of Eligibility, Enrollment and Payment” has been translated into Spanish and will be posted to the project web page in the near future. We are also seeking a Vietnamese translation of the presentation.

The Center is developing a new survey with the American Association of People with Disabilities (AAPD) to reach the individuals the project seeks to serve and address their needs. If any organizations would like to participate in this survey process or provide feedback, please contact KHolt@MedicareAdvocacy.org.

Judy Stein and Kathy Holt will be at the National SHIP and SMP conference in August to discuss Under 65 project progress and next steps.

For more information, see: https://www.medicareadvocacy.org/under-65-project/.

LITIGATION UPDATE

  • Barrows v. Burwell (formerly Bagnall v. Sebelius), No. 3:11-cv-1703 (D. Conn.) (Observation Status). In November 2011, the Center for Medicare Advocacy and Justice in Aging filed a class action lawsuit on behalf of individuals who have been denied Medicare Part A coverage of hospital and nursing home stays because their care in the hospital was considered "outpatient observation" rather than an inpatient admission. When hospital patients are placed on observation status, they are labeled "outpatients," even though they are often on a regular hospital floor for many days, receiving the same care as inpatients.  Because patients must be hospitalized as inpatients for three consecutive days to receive Medicare Part A coverage of post-hospital nursing home care, people on observation status do not have nursing home coverage.  They must either privately pay the high cost of nursing care or forgo that skilled care.  The number of people placed on observation status has greatly increased in recent years.

On September 23, 2013, a federal judge in Connecticut granted the government’s motion to dismiss the lawsuit.  Plaintiffs appealed, but limited the appeal to the issue of the right to an effective notice and review procedure for beneficiaries placed on observation status. 

On January 22, 2015, a three-judge panel of the U.S. Court of Appeals for the Second Circuit decided that Medicare patients who are placed on observation status in hospitals may have an interest, protected by the Constitution, in challenging that classification.  The panel held that the district court erred when it dismissed the plaintiffs’ due process claims, and it sent the case back to that court for further proceedings.  Barrows v. Burwell, 777 F.3d 106 (2d Cir. 2015).

Update: The parties have completed discovery on the question of whether plaintiffs have a “protected property interest” in Part A coverage of their hospital stays, such that they would have due process rights. Plaintiffs received voluminous documentation from the government and conducted depositions of witnesses from the Department of Health and Human Services, Medicare contractors, and some of the hospitals that treated the named plaintiffs. The law firm of Wilson Sonsini Goodrich & Rosati, which has helped the Center in previous litigation, is providing pro bono assistance. The government filed its motion for summary judgment and supplemental motion to dismiss on June 16, 2016.  Plaintiffs’ cross motion for summary judgment and opposition to the government’s motions will be filed by July 29, 2016. The briefing is scheduled to be completed by late September.

 

  • Exley v. Burwell (formerly Lessler v. Burwell), No. 3:14-cv-1230 (D. Conn.) (ALJ Delays) The Medicare statute and regulations require that an administrative law judge (ALJ) issue a decision within 90 days the filing of a request for hearing. While the Chief ALJ has stated that individual beneficiary cases should not be delayed, still most of the Center’s cases were exceeding statutory timelines for decisions.

On August 26, 2014, the Center filed a nationwide class action lawsuit in United States District Court in Connecticut. The named plaintiffs, from Connecticut, New York and Ohio, all waited longer than the statutory 90-day limit for a decision on their Medicare appeals. The complaint is available here: https://www.medicareadvocacy.org/wp-content/uploads/2014/08/00083998.pdf.

On January 29, 2015, defendant’s motion to dismiss was denied.  On June 10, 2015, the court granted the plaintiffs’ motion for certification of nationwide class of Medicare beneficiaries who have been or will be waiting more than 90 days for a decision on their timely-filed request for an ALJ hearing.  The parties also conducted discovery.

In March 2016 the court preliminarily approved a settlement.  The proposed settlement addresses delays that Medicare beneficiaries have been experiencing at the ALJ level of review. Among other things, the settlement calls for the Office of Medicare Hearings and Appeals (OMHA) to continue its policy of providing all beneficiary appellants with priority over other appellants in receiving ALJ decisions, to designate a Headquarters Division Director to oversee inquiries about appeals initiated by beneficiary appellants and to address any complaints or questions concerning the processing of those appeals. OMHA will also establish a toll-free help line for beneficiary appellants to be answered by the Division Director’s staff. OMHA will introduce a new, more user-friendly ALJ hearing request form that allows beneficiaries to self-identify, and will also publish data about the length of processing time for beneficiary appeals.

Update: Notice to the class was posted, and then a revised notice after the parties negotiated a small change to the agreement. A fairness hearing is scheduled for August 1, 2016. A link to the class notice is below; we invite you to distribute information about the settlement and fairness hearing to beneficiaries and their advocates.

 

  • Jimmo v. Sebelius, No. 5:11-cv-17 (D. Vt.) (Improvement Standard).  As reported during previous Alliance calls, the settlement in Jimmo was approved on January 24, 2013 during a fairness hearing.  CMS has issued revisions to its Medicare Benefit Policy Manual to clarify that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatient settings.  CMS also implemented a nationwide education campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve. Pursuant to the settlement, counsel for the parties are meeting twice a year to discuss problems with implementation and possible solutions, and are in regular contact between meetings.

On March 1, 2016, the Center and its co-counsel, Vermont Legal Aid, filed a Motion for Resolution of Non-Compliance with the Settlement Agreement.  The filing comes after three years of urging the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation to end continued application of an “Improvement Standard” by Medicare providers, contractors and adjudicators to deny Medicare coverage for skilled maintenance nursing and therapy.

If truly implemented and enforced, the settlement should improve access to skilled maintenance nursing and therapy for thousands of older adults and people with disabilities whose Medicare coverage for skilled care is denied or terminated because their conditions are “chronic,” “not improving,” “plateaued,” or “stable.” Unfortunately, providers and contractors continue to illegally deny Medicare coverage and care based on an “Improvement Standard,” resulting in beneficiaries nationwide failing to obtain needed skilled nursing and therapy coverage. This continued loss of skilled care based on an improvement requirement is occurring despite the assertion by CMS that it has completed the education campaign required by the Settlement. That campaign, however, has clearly failed to educate key components of the provider community and Medicare decision-making system.

Update: The Motion for Resolution of Non-Compliance was fully briefed and oral argument was held on May 26, 2016.  The Center and Vermont Legal Aid were encouraged by Chief Judge Reiss’s understanding of the issues presented and expect a ruling from the court soon.

 

  • Hull v. Sebelius, No. 3:14-cv-801 (D. Conn.) (Lower level Medicare appeals) On June 4, 2014, the Center filed a complaint in United States District Court in Connecticut against Kathleen Sebelius, Secretary of Health and Human Services (at that time), on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action on behalf of Connecticut Medicare beneficiaries seeking home health care coverage, and the four named plaintiffs represent the thousands of beneficiaries who cannot get a meaningful review of their cases. Instead, Medicare beneficiaries receive almost automatic denials of coverage, which is essentially “rubber stamped” at both the Redetermination and Reconsideration levels. The problem persists throughout the country.

On December 8, 2014, the court granted the government’s motion to dismiss on the grounds that the named plaintiffs, who are dual eligibles, lack standing because they received coverage of the services at issue from Medicaid.  Plaintiffs filed a motion for reconsideration. On July 6, 2015, the court reconsidered its order but adhered to its decision that the plaintiffs lack standing.  In its reconsideration, the court noted that the Supreme Court granted certiorari in a case that may shed light on the standing issue at dispute. See Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (2015) (granting cert on the following question presented: Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.).

Plaintiffs appealed the case to the Second Circuit on September 17, 2015 (Case No. 15-2949), and at plaintiffs’ request the court agreed to hold the appeal in abeyance pending the outcome of Spokeo at the Supreme Court.

Update: The Spokeo decision was announced by the Supreme Court on May 16, 2016. After analyzing the Court’s rather unclear holding about the injury-in-fact requirements of Article III, plaintiffs concluded that it would not be fruitful to pursue further appeal and the parties stipulated to a withdrawal of the appeal, which was ordered on June 7, 2016.

 

  • Sherman v. Burwell (formerly Olsen-Ecker v. Burwell), No. 3:15-cv-1468 (D. Conn.) (Lower level Medicare appeals) On October 9, 2015, the Center filed a complaint in United States District Court in Connecticut against Sylvia Mathews Burwell, Secretary of Health and Human Services, on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action on behalf of Medicare beneficiaries seeking home health care coverage, and the named plaintiff, like the plaintiffs in Hull, represents beneficiaries who cannot get a meaningful review of their cases. However in this “rubber stamp” case, the plaintiff was not eligible for Medicaid and thus was personally financially liable for the Medicare services under appeal.  The plaintiff filed a motion for class certification on October 23, 2015, and the government filed a motion to dismiss on January 13, 2016.

Written discovery was served on the government but the court stayed discovery while the motion to dismiss is still pending. Oral argument was held on the government’s motion to dismiss and the plaintiff’s motion for class certification on February 29, 2016. During the hearing the judge indicated that he was likely to reject the government’s motion to dismiss, however he also found plaintiff’s claim for “commonality” among class members problematic, which may spell difficulty for the class certification motion. The judge took the two motions under advisement and has not yet issued a decision.

The Center is interested in hearing about similar problems that beneficiaries are encountering with respect to “rubber stamp” denials of home health or SNF coverage at the first two levels of appeal.  Advocates and beneficiaries are encouraged to contact Ali Bers at abers@medicareadvocacy.org.

 

  • Ryan v. Burwell, No. 5:14-cv-269 (D. Vt.) (Prior Favorable Homebound Determination) On December 19, 2014, the Center for Medicare Advocacy and Vermont Legal Aid filed a class action lawsuit against Sylvia Mathews Burwell, the Secretary of Health and Human Services, to stop Medicare’s practice of repeatedly denying coverage for home health services for beneficiaries on the basis that they are allegedly not homebound, when Medicare has previously determined them to be homebound. (Ryan v. Burwell). The lawsuit was filed in the United States District Court in Burlington, Vermont on behalf of two Vermont residents, Marcy Ryan and John Herbert, as a regional class action lawsuit covering New England and New York.

On March 25, 2015, the government filed a motion to dismiss on the grounds that plaintiffs lack standing, that the court lacks subject matter jurisdiction, and that plaintiffs have failed to state claim on which relief may be granted.  On July 27, 2015, the court denied the government’s motion to dismiss, finding four separate grounds on which the dually eligible plaintiffs have standing. (Compare Hull, above, in which the court rejected similar standing arguments.) The court also found that it had subject matter jurisdiction and that plaintiffs had stated a claim on which relief could be granted.

Oral argument on the plaintiffs’ motion for certification of a regional class took place in Rutland, Vermont on September 21, 2015.  Judge Crawford requested additional briefing on whether certain beneficiaries should be included in the class, and whether the class should be “closed,” meaning time-limited to the point where the agency removed a Manual provision which is at issue in the case.

On December 2, 2015, the court granted plaintiffs’ motion for class certification and, at request of the plaintiffs, issued clarification on the class definition on February 23, 2016.  The regional class is defined as all beneficiaries of Medicare Part A or B in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont (Medicare Administrative Contractor Jurisdiction K): (a) who have received a “favorable final appellate decision” that he or she was “confined to the home,” i.e. homebound, in the appeal of a home health nursing or therapy claim denial; (b) who have subsequently been denied, or will be denied, coverage for additional service on the basis of not being homebound, on or after January 1, 2010; (c) who had a non-lapsed, viable appeal of the subsequent denial for coverage of additional home health services as of March 5, 2015, or had a particularized individual basis for tolling of any applicable appeal deadline; and (d) for whom the claim for Medicare home health coverage was filed on or before August 2, 2015.

Written discovery has been served. Defendant’s counsel has approached plaintiffs’ counsel about possible settlement.

 

  • Lodge v. Burwell, No. 3:15-cv-390 (D. Conn., filed 3/17/2015) (Medically necessary oral health care). This appeal filed in federal court, District of Connecticut, presents an opportunity for the court to review whether surgical treatment to a Medicare beneficiary’s teeth damaged by radiation therapy to the head and neck was 1) properly characterized by an Administrative Law Judge as a covered physician service that was medically reasonable and necessary as a part of an overall plan of care for cancer or 2) improperly characterized by the government contractor as excluded dental services.  These competing interpretations depend upon how the specific treatment is characterized. The plaintiff amended the complaint on June 30, 2015 to add a claim under the Administrative Procedure Act (APA), stating that in 1974 the agency removed the word “routine” from the description of excluded dental services without following proper notice-and-comment procedure. Plaintiff requests that the court therefore read the relevant regulation as if the word “routine” had never been removed, which would allow for coverage of his extraordinary, non-routine oral health care.

The government filed a partial motion to dismiss in October 2015. The motion sought to dismiss the APA claim as barred by the statute of limitations. However after the motion was briefed, the government requested and was allowed to withdraw the partial motion to dismiss. The parties also conducted limited written discovery.

Update: Oral argument is scheduled for September 23, 2016.

 

  • Bremby v. Burwell, No. 3:15-cv-1397 (D. Conn.) (per se skilled services). This case was filed on September 22, 2015, in the U.S. District Court for the District of Connecticut.  It challenges the denial of Medicare home health coverage for a beneficiary who required monthly Vitamin B-12 intramuscular injections.  Intramuscular injections are, by regulation, a per se skilled service, and the beneficiary in this case has a condition (Total Gastrectomy) for which Medicare policy expressly recognizes B-12 injections to be a medically necessary treatment.  The Center is interested in hearing about similar problems that others are encountering with respect to denials of home health or SNF coverage for per se skilled services listed at 42 C.F.R. 409.33(b).  Advocates and beneficiaries are encouraged to contact Wey-Wey Kwok at wkwok@medicareadvocacy.org.

Other examples of health care services that are defined by Medicare as skilled in either a Skilled Nursing Facility or for Home Health care include:

(1) Intravenous or intramuscular injections and intravenous feeding.

(2) Enteral feeding that comprises at least 26 per cent of daily calorie requirements and provides at least 501 milliliters of fluid per day.

(3) Nasopharyngeal and tracheostomy aspiration;

(4) Insertion and sterile irrigation and replacement of suprapubic catheters;

(5) Application of dressings involving prescription medications and aseptic techniques;

(6) Treatment of extensive decubitus ulcers or other widespread skin disorder;

(7) Heat treatments which have been specifically ordered by a physician as part of active treatment and which require observation by nurses to adequately evaluate the patient's progress;

(8) Initial phases of a regimen involving administration of medical gases;

(9) Rehabilitation nursing procedures, including the related teaching and adaptive aspects of nursing, that are part of active treatment, e.g., the institution and supervision of bowel and bladder training programs.

On December 28, 2015, the government filed a motion to remand the case to the Medicare Appeals Council. On April 29, 2016, the court granted the government’s motion to remand, but retained jurisdiction and ordered defendant to submit a status report on further action taken by the Secretary of Health and Human Services by August 15, 2016.

Update: On June 13, 2016, the Medicare Appeals Council issue a new decision, favorable to the beneficiary. It decided that the monthly Vitamin B-12 injections should be covered, however its rationale was questionable.  The Appeals Council stated that the medical records did not “clearly indicate the purpose for giving” the B-12 injections, “nor do most of the skilled nursing visit notes specifically reference the beneficiary’s gastrectomy.”  It found coverage as warranted nonetheless because the beneficiary’s plans of care referenced the total gastrectomy.  The decision made no reference to the serious problems with the original Appeals Council decision, which theorized that the beneficiary could have performed the intra-muscular injections herself. Despite the favorable ruling, the Center is not satisfied with the reasoning of the Appeals Council and expects to alert the court of its objections. The Center also awaits the status report from the government, due to be filed by August 15, 2016.

Skip to content