An Important Change to Post-Acute Planning That Affects Hospital Providers (Us)

By  |  November 4, 2012 | 


An important proposed settlement between CMS and the Center for Medicare Advocacy last week will alter our approach to post-acute care.

Currently, we prepare patients for discharge and assess baseline ability and their potential for functional improvement at some point during their illness.  Our patients decondition during the stay or from the prodrome leading to the episode, and almost involuntarily from repetition, we arrange for sub-acute, skilled care at release time.  They meet requirements.  Period.

Moreover, the robotic instincts steering us toward case management and physical therapy in the presence of these indications deter us in their absence.  We care, but the refrain of “they won’t cover it,” when we seek services for maintenance of the patient’s current condition or to slow deterioration has weakened our resolve to pursue alternatives.  We accept defeat and long-term, custodial care at home or in a facility is the only available path.  Caregivers band-aid up needed services on their own dime (or Medicaid’s).

The case upends current practice:

Attorneys from the Center for Medicare Advocacy, Vermont Legal Aid and the Centers for Medicare & Medicaid Services (CMS) have agreed to settle the “Improvement Standard” case, Jimmo v. Sebelius.[1] A proposed settlement agreement[2] was filed in federal District Court on October 16, 2012.  When the judge approves the proposed agreement, a process that may take several months, CMS will revise the Medicare Benefit Policy Manual and other Medicare Manuals to correct suggestions that Medicare coverage is dependent on a beneficiary “improving.” New policy provisions will state that skilled nursing and therapy services necessary to maintain a person’s condition can be covered by Medicare.

Essentially, if the patient requires a skilled service—and they meet the newly clarified indications, CMS must cover it.  Here are excerpts from the proposed revisions*, boldface mine:


Manual Revisions

1.  The agency will revise the relevant portions of Chapters 7, 8, and 15 of the Medicare Benefit Policy Manual (MBPM) to clarify the coverage standards for the skilled nursing facility (SNF), home health (HH), and outpatient therapy (OPT) benefits when a patient has no restoration or improvement potential but when that patient needs skilled SNF, HH, or OPT services (SNF, HH, OPT “maintenance coverage standard”). The agency will also revise the relevant portions of Chapter 1, Section 110 of the MBPM to clarify the coverage standards for services performed in an inpatient rehabilitation facility (IRF).

2.  The manual revisions to be made pursuant to this Settlement Agreement will clarify the SNF, HH, and OPT maintenance coverage standards and IRF coverage standard only as set forth below in Sections IX.6 through IX.8. Existing Medicare eligibility requirements for coverage remain in effect. Nothing in this Settlement Agreement modifies, contracts, or expands the existing eligibility requirements for receiving Medicare coverage, including such requirements found in:

a. Posthospital SNF Care, as set forth in 42 C.F.R. Part 409, Subparts C and D, and related subregulatory guidance;

b. Home Health Services, as set forth in 42 C.F.R. Part 409, Subpart E, 42 C.F.R. Part 410, Subpart C, and related subregulatory guidance;

c. Outpatient Therapy Services, as set forth in 42 C.F.R. Part 410, Subpart B, and related subregulatory guidance; and

d. Inpatient Rehabilitation Facility services, as set forth in 42 C.F.R. Part 412, Subpart P, and related subregulatory guidance. (Proposed settlement document at p. 10-11)

As stated above, approval will take several months, and CMS has a year to implement the changes.  However, CMA states the settlement agreement goes back to the date the case was filed, January 18, 2011, and patients can have prior denials reviewed.  The decision applies to all of Medicare–including Medicare Advantage plans.  Additionally, CMA also encourages beneficiaries to request these services now, as the decision clarifies current, not new policy.  As such, SNF stays are still covered only for 100 days–unaltered from pre-settlement practice.

My Take:

You can see this influences our daily affairs.  I do envision complications however:

  • The line is blurry.  Maintenance and improvement are different entities and battles will ensue when caregivers demand services for patients not benefitting from services.  The debate is who interprets “not benefitting.”
  • Is this a back door for custodial (“non-skilled”) provision of care?
  • The cost doves will see the glass as half-full: this will save money and keep folks healthier and out of hospitals.  The cost hawks will see the glass as half empty:  the “woodwork effect” will add billions in cost provisions.
  • Given the potential for added expense (and I am in that camp), we must reorganize chronic care management.  The CMS payment system results from decades of uncoordinated incremental fixes, arbitrary decision making by local contractors, and orphaned programs (hospice).
  • Given the latitude Medicare Advantage programs have in administering the benefit, especially with supplemental services, will this affect their current practice?
  • Will medical directors and subacute facilities outside of the hospital push back on how we as discharging physicians view “skilled needs” and will the frontline fight fall to ancillary staff, families, or us?

The new policy still requires clarification and I expect collisions on all sides.  As always, it comes down to money.

If you wish to learn more, the story was covered well in the NYT, Reuters, Kaiser Health News, and Health Affairs (*h/t Ken Thorpe, PhD).  Please educate yourselves on this subject. You will be the smartest person in the room as the changes ensue (it’s the value-added thing), and I include the first floor, usual cast of characters in my generalization.  Nothing new there.   Cue smiley thingie.


On another note, please read this story on Pradaxa (Dabigatran).  We all feared without an antidote, bleeding rates and harms might exceed what we encounter with Coumadin, despite initial safety reassurances.  As this NYT story relays not so, and this phenomena, if true, is illustrative of the pitfalls of explanatory over pragmatic trials.  I was shocked at the rapid uptake of Pradaxa use in the last 1-2 years.  The stats are sobering.

The November 2012 FDA take:

RECOMMENDATION: At this time, FDA continues to believe that Pradaxa provides an important health benefit when used as directed and recommends that healthcare professionals who prescribe Pradaxa follow the recommendations in the approved drug label.

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  1. […] Posted at The Hospitalist Leader on 11/4/2012 Brad Flansbaum, writer for The Hospitalist […]

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About the Author: Brad Flansbaum

Brad Flansbaum
Bradley Flansbaum, DO, MPH, MHM works for Geisinger Health System in Danville, PA in both the divisions of hospital medicine and population health. He began working as a hospitalist in 1996, at the inception of the hospital medicine movement. He is a founding member of the Society of Hospital Medicine and served as a board member and officer. He speaks nationally in promoting hospital medicine and has presented at many statewide meetings and conferences. He is also actively involved in house staff education. Currently, he serves on the SHM Public Policy Committee and has an interest in payment policy, healthcare market competition, health disparities, cost-effectiveness analysis, and pain and palliative care. He is SHM’s delegate for the AMA House of Delegates. Dr. Flansbaum received his undergraduate degree from Union College in Schenectady, NY and attended medical school at the New York College of Osteopathic Medicine. He completed his residency and chief residency in Internal Medicine at Long Island Jewish Medical Center in New York. He received his M.P.H. in Health Policy and Management at Columbia University. He is a political junky, and loves to cook, stay fit, read non-fiction, listen to many genres of music, and is a resident of Danville, PA.


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