CMS Updates Its Coverage Manual to Comply with the Jimmo v. Sebelius Decision
December 17, 2013 10:12 AM
The Centers for Medicare & Medicaid Services (CMS) has issued manual guidance - Change Request 8458 - related to the Jimmo v. Sebelius lawsuit decision. The lawsuit puts an end to the Medicare contractors applying an improvement standard for Medicare covered services. CMS has consistently stated that the decision does not alter the Medicare benefit in any way, but serves to clarify that coverage of skilled nursing and therapy services does not require that the beneficiary have a potential for improvement, but rather that the beneficiary is in need of skilled care.
Relative portions of the manuals for Skilled Nursing Facility (SNF), Inpatient Rehabilitation Facility (IRF), Home Health (HH), and Outpatient (OPT) coverage have been updated.
The following are some significant aspects of the manual clarifications now being issued:
No “Improvement Standard” is to be applied in determining Medicare coverage for maintenance claims that require skilled care
Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes - i.e., to prevent or slow a decline in condition. The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves. The manual revisions will serve to reflect and articulate this basic principle more clearly.
Enhanced guidance on appropriate documentation
Portions of the revised manual provisions now include additional material on the role of appropriate documentation in facilitating accurate coverage determinations for claims involving skilled care. While the presence of appropriate documentation is not, in and of itself, an element of the definition of a “skilled” service, such documentation serves as the means by which a provider would be able to establish and a Medicare contractor would be able to confirm that skilled care is, in fact, needed and received in a given case. CMS has decided to use this opportunity to introduce additional guidance in this area, both generally and as it relates to particular clinical scenarios.
For example, CMS has added the following documentation guidance to the home health coverage manual for General Principles Governing Reasonable and Necessary Skilled Nursing:
“...As such, it is expected that the home health records for every visit will reflect the need for the skilled medical care provided. These clinical notes are also expected to provide important communication among all members of the home care team regarding the development, course and outcomes of the skilled observations, assessments, treatment and training performed. Taken as a whole then, the clinical notes are expected to tell the story of the patient’s achievement towards his/her goals as outlined in the Plan of Care. In this way, the notes will serve to demonstrate why a skilled service is needed.
Therefore the home health clinical notes must document as appropriate:
the history and physical exam pertinent to the day’s visit, (including the response or changes in behavior to previously administered skilled services) and the skilled services applied on the current visit, and
the patient/caregiver’s response to the skilled services provided, and
the plan for the next visit based on the rationale of prior results,
a detailed rationale that explains the need for the skilled service in light of the patient’s overall medical condition and experiences,
the complexity of the service to be performed, and
any other pertinent characteristics of the beneficiary or home
Clinical notes should be written so that they adequately describe the reaction of a patient to his/her skilled care. Clinical notes should also provide a clear picture of the treatment, as well as “next steps” to be taken. Vague or subjective descriptions of the patient’s care should not be used. For example terminology such as the following would not adequately describe the need for skilled care:
Patient tolerated treatment well
Caregiver instructed in medication management
Continue with POC”
The Jimmo v. Sebelius settlement agreement itself includes language specifying that, “Nothing in this Settlement Agreement modifies, contracts, or expands the existing eligibility requirements for receiving Medicare coverage.” Rather, the intent is to clarify Medicare’s longstanding policy that when skilled services are required in order to provide care that is reasonable and necessary to prevent or slow further deterioration, coverage cannot be denied based on the absence of potential for improvement or restoration.
By contrast, coverage in this context would not be available in a situation where the beneficiary’s maintenance care needs can be addressed safely and effectively through the use of nonskilled personnel. As such, the revised manual material does not represent an expansion of coverage, but rather, provides clarifications that are intended to help ensure that claims are adjudicated accurately and appropriately in accordance with the existing policy.
Because the Medicare contractors will be looking at these enhanced elements in the Medicare coverage manual to determine reasonable and necessary skilled services, agencies are encouraged to closely review the manual updates.
Click here to view CR 8458.