Four years after Medicare officials agreed in a landmark court settlement that seniors cannot be denied coverage for physical therapy and other skilled care simply because their condition is not improving, patients are still being turned away.

So federal officials and Medicare advocates have renewed their court battle, acknowledging that they cannot agree on a way to fix the problem. Earlier this month, each submitted ideas to the judge, who will decide — possibly within the next few months — what measures should be taken.

Several organizations report that the government’s initial education campaign following the settlement has failed. Many seniors have only been able to get coverage once their condition worsened. But once it improved, treatment would stop — until they got worse and were eligible again for coverage.

Every year thousands of Medicare patients receive physical therapy and other treatment to recover from a fall or medical procedure, as well as to help cope with disabilities or chronic conditions including multiple sclerosis, Alzheimer’s or Parkinson’s diseases, stroke, and spinal cord or brain injuries.  Although it removes the necessity to show an improving health condition, the settlement does not affect other criteria and limitations on Medicare coverage.

“We still regularly get calls from people who are told they are being denied coverage,” said Peter Schmidt at the National Parkinson Foundation, based in Miami. Denials sometimes occur because physical therapy providers use a billing code that still requires the patient to show improvement. Although Parkinson’s is a degenerative brain disease, Schmidt said physical therapy and exercise can help slow its progress.

The agreement, approved in 2013, settled a class action lawsuit against the Centers for Medicare & Medicaid Services filed by the Center for Medicare Advocacy and Vermont Legal Aid on behalf of five Medicare beneficiaries, including the late Glenda Jimmo, and  six nationwide patient organizations. Coverage, the Jimmo settlement said, does not depend on the “potential for improvement from the therapy but rather on the beneficiary’s need for skilled care.”

In August, U.S. District Court Chief Judge Christina Reiss in Vermont ordered the government to work with the beneficiaries’ attorneys to strengthen its education campaign about the policy aimed at bill-processing contractors, claims reviewers, providers, appeals judges, people who staff the 800-MEDICARE help line and others. (Beneficiaries, however, were not included.) After working during the fall, both sides acknowledged this month they could not reach a compromise on the best way to make revisions to the education campaign.

“There was a long-standing kind of mythical policy that Medicare contractors put into place that said Medicare only pays for services if the patient could progress,” said Roshunda Drummond-Dye, director of regulatory affairs for the American Physical Therapy Association. “It takes extensive effort to erase that.”

Medicare’s proposals include educational efforts such as a special webpage with “frequently asked questions” spelling out the proper procedures for handling claims. The government would also issue a clear statement confirming that Medicare covers physical, speech and occupational therapy along with skilled care at home, and in other settings, even if the patient has “reached a plateau” — a term seniors still hear — and is not improving.

Attorneys for the seniors want to monitor how Medicare officials implement these new measures and have offered to write the policy statement disavowing what’s known as the “improvement standard.” They also want the government to repeat its 2013 conference call with providers, contractors and others involved in the process in order to correct mistakes, according to papers filed with the court Jan. 13.

“The major problem for us is that they do not want the plaintiff’s counsel to have any say or involvement in what they do,” said Gill DeFord, litigation director at the Center for Medicare Advocacy in Connecticut. “We think that’s exactly the reason the educational campaign was so riddled with inaccuracies in the first place.” 

But in its filing, the government said, “The Plaintiffs’ plan seeks to address perceived deficiencies that were specifically not guaranteed under the [settlement] Agreement.” It added accepting the advocates’ plan “would also grant their counsel undue control in developing CMS educational materials and an outsize role in CMS’ corrective action efforts.”

The settlement affects care provided by a trained professional in a patient’s home, nursing home or the provider’s private office that is medically necessary to maintain the patient’s condition and prevent deterioration.

A Medicare spokesman declined to comment under agency protocol because the case is still pending.

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