After years of fighting Medicare on denials for physical, occupational and speech therapy, the Center for Medicare Advocacy won a victory that its director hopes resolves the question once and for all.
The center, which has its national headquarters in Willimantic, represented plaintiffs in a class-action lawsuit filed in January 2010. The federal government agreed Oct. 16 to settle the suit, and the agreement was made public in Tuesday's New York Times.
Center Director Judith Stein spoke about the proposed settlement to reporters around the country Tuesday.
Medicare's own standards said the likelihood of improving was not necessary for Medicare to pay for skilled therapies, if a therapist said her supervision was needed for therapy that would maintain a patient's chronic condition.
But over decades, Stein said, the improvement standard became an excuse to deny payment.
"Far too many American families have had to pay for services out of pocket, or witness the decline of family members," she said.
The nonprofit organization filed lawsuits over the years on individual denials, but only had enough staff to handle a fifth of the calls. It was getting five to 10 calls a week, mostly from Connecticut residents, though it represented people around the country.
Stein said, "We've brought hundreds and hundreds of individual appeals," and she said they usually won at the third level of appeal. "There are not enough resources to do each individual case, and it doesn't bring systemic change."
In 2010, U.S. Rep. Joe Courtney, a Democrat from Connecticut's 2nd Congressional District, got involved to try to get Medicare to educate its claim payment contractors, and recruited 16 other Congress members to sign a letter on the topic.
The letter had no effect.
"Frankly, it really only left one other option to bring litigation to force the issue," Courtney said Tuesday, and he congratulated the lawyers who won the settlement, calling it a milestone moment for Medicare recipients.
He said sometimes pressure from Congress can get agencies to move, but "given how entrenched this issue was," he said, in hindsight, the pressure of a class-action lawsuit, and the time the lawyers could dedicate to negotiating a settlement, was the best way to make a change. The settlement took 10 months of negotiations.
Covering skilled therapy for patients with chronic or progressive illnesses such as multiple sclerosis, Lou Gehrig's disease and Alzheimer's will cost Medicare more, but how much more is unclear. How many tens of thousands of patients will get more coverage is also unknown.
Having Medicare pay for skilled therapy during home health care visits can delay admission to a nursing home, which ultimately saves Medicaid dollars, as most people do not have enough savings to cover their stays in a nursing home.
Stein said she hopes the savings from delaying or preventing nursing home admissions will counterbalance some of the increased costs for Medicare as a result of the policy change. She said she didn't know whether the bulk of denials are for patients in nursing homes — Medicare covers 100 days of a rehabilitation stay after a hospital admission — or at home.
Courtney, when speaking about the problem in January 2011 to The Courant, said the pace of medical inflation does threaten Medicare's viability.
But he said the improvement standard is "a pretty inhumane approach to cost containment. It's sort of this back-door cost control."
The lawsuit will not change the annual cap in Medicare payments for skilled therapies in outpatient settings, which is about $1,800.
Roshunda Drummond-Dye, director of regulatory affairs for the American Physical Therapy Association, said the physical therapists' trade group has supported the lawsuit's aims.
Continuing therapy "should be based on the clinical judgment" of the provider, she said, not an arbitrary standard. She said private insurance also has tended to require progress toward measurable goals, and has not been willing to pay for physical therapy that merely prevents a patient from getting worse.
Will private insurers follow the government's lead? A spokesman for the trade group for health insurers declined to comment.