To Discharge or Not to Discharge, Jimmo V. Sebelius

LandscapeHome health providers have long been struggling with this question. We have all had patients who plateaued and we knew if we discharged them they would soon deteriorate or have an exacerbation and need home health care again. We could keep them on service by utilizing the “management and evaluation of the patient care plan” for nursing or the therapeutic maintenance of function for therapy; however, Medicare regulations have made the documentation requirements so onerous that it is next to impossible to get payment for these skilled services. So the patient gets discharged knowing that they will soon return to home health care.

There is now hope for these patients. On January 24, 2013 the US District Court for the District of Vermont approved a settlement agreement in which the plaintiff’s alleged that Medicare contractors were inappropriately applying an “Improvement Standard” in making claims determinations for Medicare coverage of skilled care. The case was Jimmo v. Sebelius. And the court agreed with their allegations that skilled care was being denied inappropriately due to a beneficiary’s lack of restoration potential.

As a result of this case CMS has agreed to reword the Medicare program manuals for clarity. In the settlement agreement Medicare agrees to clarify that coverage of therapy is not dependent on the presence or absence of a beneficiary’s potential for improvement from therapy but rather on the need for the skilled care. This opens the door for many patients to be maintained on service, as long as skilled care is required. So when does this go into effect?

At a recent Home Care Association of Florida (HCAF) meeting Bobby Lolley, Executive Director, stated that with the recent court decision those patients who are on service today and who clearly qualify for continuing “maintenance” care under the Medicare Home Health benefit, should not be denied that care or be discharged. The law was clearly established and effective on January 24, 2013. Medicare has until January 23, 2014 to complete the Medicare Manual revisions and provide educational initiatives for contractors and providers, but those qualifying patients should receive what they are entitled to today.

Bobby Lolley noted that providers could continue to keep these patients on service even in the absence of the Manual revisions but they would run the risk of those claims being denied. However, he went on to stress that subsequent denials could be appealed to the Administrative Law Judge and the odds were good that the judge would look at Jimmo v. Sebelius decision and would rule in the favor of the patient. Lolley pointed out, that having to deal with an ALJ should not discourage providers from doing what is legal and right, and stressed that  many agencies are already routinely having to take RAC and ZPIC audit findings to the ALJ level to have them reversed.

Lolley did caution HCAF members, if they chose to go this route, there is a pressing need to insure that meticulous documentation is included in the visit records. Each visit note should clearly state what would happen if the skilled care was not provided. In the presentation he also advised agencies to 1) re-familiarize themselves with existing standards; 2) Educate staff on how to document need for skilled care in maintenance therapy and chronic condition cases; and 3) Educate attending physicians to use the F2F encounter narrative to justify services and why skilled care is needed in cases requiring skilled maintenance therapy or chronic conditions nursing.

If you are providing care in Florida and miss the HCAF Spring District Meeting you have missed a lot of really good information, far more than just Jimmo V. Sebelius. There will be a Webinar for those who could not attend a district meeting. I encourage everyone in Florida to go to the HCAF web site and sign up. If you are not a member of HCAF you should be. It is the foremost advocacy group for the Home Health Industry in Florida. Check it out at

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