Maintain Current Function Rehab Therapy Rule Change For SNF and HHC.

A landmark settlement was agreed to last week defining how The Medicare National Bank (CMS) would pay for skilled nursing facility (SNF) therapies and home health care therapies in the chronically debilitated but not medically improving class of CMS beneficiaries.  Every article I've read applauds this ruling as a victory for Medicare patients.  Nobody is paying attention to the grave consequences on the flip side of this settelment.  This case is huge and I foresee grave unintended consequences with equally  and potentially more devastating results for beneficiaries, for hospitals and for the viability of a Medicare program that is already bankrupt.  

On October 23, 2012  Obama's Departement of Health and Human Services settled the class action lawsuit  Jimmo v. Sebelius brought on by a disabled woman who was denied payment for Medicare rehabilitation benefits  because she failed to show improvement in her condition.    While not explicitly stated in CMS policies and procedures, Medicare carriers had routinely denied paying for rehabilitation services in patients who failed to show continued improvement in their condition.  That meant physical, occupation and speech therapies were among services being denied for chronically debilitated patients who didn't improve.  I can only suppose the definition of improve was being determined on a case by case basis from the professionals involved in patients' care.

As a result of this settlement, Medicare beneficiaries will no longer have to show improvement in their condition to continue receiving paid benefits from CMS.  Patients can now receive rehabilitation therapies in order to maintain their current level of function and prevent further decline. I refer the reader to the December 6th, 2013 Medicare Learning Network document MM8458 titled Manual Updates to Clarify Skilled Nu rsing Facility (SNF), Inpatient Rehabilitation Facility (IRF), Home He alth (HH), and Outpatient (OPT) Coverage Pursuant to Jimmo vs. Sebelius for a detailed discussion by CMS on these changes.

While this change in policy sounds like  nothing but positives for Medicare patients, I believe the unintended  consequences are being ignored and need to be discussed.  As a hospitalist I have a clear view of how this change will affect hospitals, hospitalists and patients alike.

What effect will this change have on skilled nursing benefits?  I previously explained the 3 midnight rule for getting into a SNF after hospital discharge.  Do most patients who go to a SNF stay there for the 100 days that Medicare provides some coverage for?  For the chronically debilitated, I doubt it. Most probably weren't showing improvement after several weeks and then  transitioned to a nursing home for long term care.    But this settlement changes everything.  If any hospitalized patient is discharged to a SNF and they are showing no improvement in their baseline weakness, every single patient I discharge to a SNF will now qualify, by default, for 100 days of paid nursing home benefits in order to prevent a further decline in their function.  Instead of patients going to a self pay nursing home, the nursing home will be coming to them with expensive daily therapies that will have no effect on their outcome, courtesy of the Medicare National Bank.

I know some folks are probably thinking that these rehabilitation benefits will prevent most patients from progressing in their functional decline.  They're wrong.   I think it's important that someone stands up for physiology and says the truth:  Some people cannot be rehabed.  Some people with chronic disabling and debilitating diseases are simply waiting to die.  No rehab in the world is going to make them better or keep them from getting worse.  Many disease are,  by nature, progressive and irreversible.  These folks are appropriate palliative care candidates, not rehabilitation candidates.  Unfortunately, the settlement will make no distinction between folks who may actually benefit from rehabilitation to prevent further decline and those folks who's decline is expected, regardless of therapy interventions and are simply waiting to die but won't because Medicare and their families won't let them allow a natural death.

And what happens at the end of 100 days when the patient's SNF benefits run out?  Will Medicare stop paying for their PT/OT and speech benefits?  You bet they will because Medicare rules only provide SNF coverage for up to 100 days per benefit period.  How long before a lawsuit questions the 100 day benefit period and demands unlimited skilled nursing benefits?  Why would a 100 day period make sense for a patient who needs life long therapies  to maintain their current level of function.  It's only a matter of time before Medicare morphs into a long term care solution (an indefinite paid for nursing home) for our huge baby boomer population that is going to demand it.

After 100 days of SNF benefits, when does the next benefit period begin?  If the patient can remain out of the hospital for 60 days, the clock starts over and they would then need to be readmitted to the hospital for 3 midnights to qualify for another 100 days of SNF benefits.

In that 60 days out of the SNF, the patient could sign up for home health care (HHC) and get their therapies there, if they so desired.  By definition, every SNF discharged patient would, with a little fudging of reality, qualify for HHC.   What are the Medicare rules for getting home health care benefits?  According to the Medicare manual, a beneficiary can qualify for home health care if all of the following criteria are met:
1.  You must be under the care of a doctor, and you must be getting services under a plan of care established and reviewed regularly by a doctor.
2.  You must need, and a doctor must certify that you need,
one or more of the following.
  • Intermittent skilled nursing care
  • Physical therapy
  • Speech-language pathology services
  • Continued occupational therapy 
3.  The home health agency caring for you must be approved by Medicare (Medicare-certified).
4.  You must be homebound, and a doctor must certify that you’re homebound. To be homebound means the following:
  • Leaving your home isn’t recommended because of your condition.
  • Your condition keeps you from leaving home without help (such as using a wheelchair or walker, needing special transportation, or getting help from another person).
  • Leaving home takes a considerable and taxing effort.
A person may leave home for medical treatment or short, infrequent absences for non-medical reasons, such as attending religious services. You can still get home health care if you attend adult day care, but you would get the home care services in your home.
UPDATE October 18th, 2013:  CMS has a new definition of homebound.  Medicare Learning Network document MM8444 describes new definition here:

For purposes of the statute, an individual shall be considered “confined to the home” (homebound) if the following two criteria are met:
  • Criteria - One: The patient must either: 
  • Because of illness or injury, need the aid of supportive devices such as crutches, canes, wheelchairs, and walkers; the use of special transportation; or the assistance of another person in order to leave their place of residence 
  • OR Have a condition such that leaving his or her home is medically contraindicated. If the patient meets one of the Criteria - One conditions, then the patient must ALSO meet two additional requirements defined in Criteria - Two below.
  • Criteria - Two: There must exist a normal inability to leave home; AND Leaving home must require a considerable and taxing effort. 

Based on this definition of home health care, anyone with any debilitating chronic disease will qualify for home health care.  That means on day 101 after the nursing home kicks the patient to the curb when Medicare stops paying for SNF benefits, they will send the patient home for home health care or they will transition the patient to nursing home status (long term care), which is not paid for my Medicare.

What do you think most Medicare patients and their families are going to say?  Do you think on day 101 they are going to jump with joy about spending down all of grandma's inheritance to get on Medicaid to pay for the nursing home and live happily ever after?  Under most circumstances, grandma cannot be forced to go to a nursing home.  Or do you think they are going to take a stab at sending grandma, who hasn't been in the upright position since 1986, back to her home and have PT/OT and speech therapists come into her home everyday under home health care benefits and provide a service that keeps grandma from dying naturally, for at least the next 60 days.

Of course, they are going to send grandma home, at which point the physical therapist will show up at her home on day 101 and say grandma looks bad enough to call an ambulance to send her to the emergency room.  The ER doctors will run a battery of tests and finally diagnose grandma with Too Old To Go Home.

Then, they will call, me, the hospitalist who can't do anything to make her better because I am not The Egyptian Magician.   So granny gets admitted by the hospitalist under observation status because even if there was a way, and there are ways, to qualify her for inpatient status for another 3 days, Medicare still won't pay for another 100 days of SNF without at least 60 days out of the hospital.   So you admit granny to observation for 48 hours at another great expense to Medicare.    Then she goes home because there just isn't anything you can do and the family won't let her go to a nursing home, not since she's getting free therapies at her own home.  And by therapies, I mean a daily well person check.

Unfortunately to the family's dismay, three weeks later they get a bill for $2,000 for the 37 home medications not paid for under observation status.  The family is livid.   But don't worry.  Patient satisfaction scores aren't counted on observation patients.  So who cares if they're angry.  Besides, the free HHC benefits should make them feel better.  It's keeping granny out of the nursing home, out of their home  and their inheritance intact.

On day 61 of SNF discharge, the daughter  arranges to have grandma brought to the ER and tells the ER doctor that grandma just isn't acting right.  And anyone over the age of 65 just not acting right is an automatic hospitalist admission.  Now that it's been 60 days since her last SNF admission, you can safely admit granny with Q 4 hour neuro checks for 72 hours for  "Acute delerium, weakness, r/o stroke" in order to qualify her for inpatient status which would then allow you to get her back to the nursing home for another 100 days of paid nursing home benefits.

Repeat every 100 days.

Medicare has just become paid nursing home coverage for millions at a cost we can't afford.  In addition, I am certain patients will spend much closer to their 100 days in benefits, creating a back log for hospitalized patients who can't be discharged to a SNF because we will have millions of people using their SNF benefits as paid nursing home benefits.  There just aren't unlimited nursing home beds available.

I suspect this new change will create a major log jam in access to SNF benefits on hospital discharge.  It will increase the risk of hospital acquired infections as patients can't be discharged when all SNF facilities are filled with patients using up their entire 100 days of SNF benefits perhaps causing hospitals to fail under already negative Medicare margins.     It will increase  the length of stay for hospitalized patient and increase the cost of caring for hospitalized patients under a DRG bundled payment model.  Post operative joint replacement patients will linger for weeks in the hospital losing mobility after surgery because inpatient rehabilitation therapists don't have the time to provide the aggressive rehabilitation necessary at a week or more out of surgery.

In addition, premiums for supplemental Medicare plans, the plans that pay for the Medicare approved but not paid for charges, will skyrocket as the cost of providing 100 days of SNF on all these Medicare beneficiaries will be paid for by these supplemental policies.  I can't even imagine the large number of strokes and heart attacks our elderly are going to have when they see the rapid expansion in premiums of their supplemental policies that will have to be paid for these expanded SNF and HHC benefits to be covered.

What are the benefits of this expanded SNF and HHC Medicare coverage?  I can think of only one.  Because we will have a log jam in discharging patients from the hospital, patients will stay in hospitals longer, perhaps weeks.  This will make patients happier.  But, hospitals are dangerous places, which is why better patient satisfaction scores are associated with higher mortality.  I hate to burst the bubble of all these world class publications applauding the expansion of Medicare benefits for rehabilitation.  The unintended consequences I foresee are going to negate the benefits and add a cost that will harm the financial stability of an already broken economic model.

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