Transcript MEDICARE COVERAGE OF SNF CARE - CMA || Center for Medicare

OBSERVATION STATUS
Center for Medicare Advocacy
February 14, 2011
Terry Berthelot (CT)
Toby S. Edelman (DC)
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3-DAY QUALIFYING HOSPITAL
STAY
 “The beneficiary must have been hospitalized . . .
for medically necessary inpatient hospital care . . .
for at least 3 consecutive calendar days, not
counting the day of discharge.” 42 C.F.R.
§409.30(a)(1)
 Issue: What time counts towards meeting the 3day qualifying hospital stay?
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OBSERVATION STATUS
 Original issue: beneficiary in observation status
(beneficiary is in a hospital bed, receiving medical
and nursing care, tests, treatments, drugs, food,
supplies, etc.)
 Then admitted as inpatient
 Care and treatment unchanged as beneficiary’s
status changes from observation to inpatient
•
Jenkel v. Shalala, 845 F. Supp. 69 (D. Conn. 1994)
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OBSERVATION STATUS
 New phenomenon: as before, beneficiary is
in a hospital bed, receiving medical and
nursing care, tests, treatments, drugs, food,
supplies, etc., BUT is said to receive
“observation services” and ENTIRE STAY
is called outpatient (covered by Medicare
Part B), not inpatient (covered by Medicare
Part A).
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OBSERVATION STATUS
 Issue Brief #3 (June 2009),
http://www.medicareadvocacy.org/Projects/
AdvocatesAlliance/AdvocatesAlliance.Issue
Briefs.htm (background information about
observation – no statutory or regulatory
authority; use of InterQual criteria;
consequences for beneficiaries)
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TODAY’S DISCUSSION
 How to pursue administrative appeal on
behalf of a beneficiary
 Advocacy efforts in Washington, DC
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HOW TO APPEAL
 There is no official appeals process
(because CMS does not view Part B
observation status as a denial of Medicare
coverage)
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APPEALS
 Distinguish
• Observation status
• Inpatient Hospital Denial
• Will get a notice with expedited appeal rights that
should be exercised by noon of the first working day
after written notice is received. 42 C.F.R.
§405.1206
• If expedited appeal not exercised, can appeal noncovered charges via standard appeal system. 42
C.F.R. §405.900 et seq.
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APPEALS
Observation Status
 Ask hospital for copy of:
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Emergency room records
Admission records
Physician orders
Consultation reports
Lab reports
Diagnostic imaging
Medication records
Nursing narratives
Discharge summary
Social service documentation
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APPEALS
Observation Status
 Review records with nurse or physician to
determine whether care was rendered at an
inpatient level of care
• Services required can only be provided in a
hospital
• 24 hour availability of a physician
• Special equipment available only in a hospital
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APPEALS
Hospital Level of Care
 The severity of signs and symptoms exhibited by the
patient;
 The medical predictability of something adverse happening
to the patient;
 The need for diagnostic studies that appropriately are
outpatient services (i.e., their performance does not
ordinarily require the patient to remain at the hospital for
24 hours or more) to assist in assessing whether the patient
should be admitted; and
 The availability of diagnostic procedures at the time when
and at the location where the patient presents. Medicare
Benefit Policy Manual, Pub. 100-2, Ch. 1, §10
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APPEALS
Hospital Level of Care
 Find policy manuals at:
www.cms.gov/manuals
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APPEALS
Observation Status
 Obtain (from beneficiary) Medicare
Summary Notice (MSN) for the days
beneficiary was at the hospital.
• Quarterly
• All pages (appeal information on last page)
• Find hospital services billed to Medicare Part
B. They will have a “control number.”
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APPEALS
Observation Status
 Appeal from MSN
• 120 days to appeal (last date to appeal is
•
identified on last page of MSN)
If late, assert good cause:
• The party was prevented by serious illness from
contracting the contractor; or
• The party had a death or serious illness in his or her
immediate family. 42 C.F.R. §405.942
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APPEALS
Redetermination Request
 In cover letter, write that the services billed
by hospital under control number: xxx were
inappropriately billed to Medicare Part B.
The beneficiary was receiving an inpatient
level of care during the days at issue and
thus the care should have been billed to
Medicare Part A.
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APPEALS
Skilled Nursing Facility
 Contact SNF billing department
 Befriend them
 Ask them to “demand bill”
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•
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Bill Medicare Part A for all dates at issue (up to 100
days) as a non-covered claim
Ask beneficiary to vigilantly watch Medicare Summary
Notices for claim, or
Ask SNF to send Remittance Advice (RA)
 Appeal from MSN or RA (120 days)
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APPEALS
Skilled Nursing Facility
 Ask SNF medical records department for:
• MDS forms
• Physician Orders
• Physician Progress Notes
• Medication Records
• Therapy Records (Physical therapy, Occupational
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therapy, Speech therapy)
Nursing Narrative Notes
Physician Certifications
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APPEALS
Skilled Nursing Facility
 Review SNF medical records
• Daily skilled care
• 5 x week therapy or
• 7 x week skilled nursing
• See 42 C.F.R. §§409.32 and 409.33 (definition
of skilled care)
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APPEALS
Redetermination Received
 Hospital and SNF
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180 days to request Reconsideration
If hospital redetermination does not address observation
issue,
• Write to the Medicare contractor and ask that it be addressed.
•
Request Reconsideration
• On hospital reconsideration request, reiterate language
regarding inappropriate billing to Medicare Part B
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Get physician statements in support of hospital
inpatient level of care and SNF level of care
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APPEALS
Reconsideration Received
 Hospital and SNF
• 60 days to appeal
• If observation status not addressed by
redetermination, write to Medicare Contractor and
request that it be addressed
• On Administrative Law Judge request regarding
hospital care,
• Indicate that reason for appeal is that Part B was
inappropriately billed for Part A hospital inpatient
care
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APPEALS
Administrative Law Judge Hearing
 Request hearing by video teleconference
 Try to have both hospital and SNF case heard by
same ALJ on the same day
 Get a copy of the Office of Medicare and Appeals’
case file. 42 C.F.R. §405.1042
 Submit additional records and statements as
needed. Permissible per 42 C.F.R. §405.1018
 If possible, have a medical expert testify
 Have family testify
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APPEALS
Administrative Law Judge Hearing
 Argue
• Observation Status
• Jurisdiction established because issue was addressed
by the lower levels.
• Rendered hospital care met definition for inpatient
care.
• Establish 3-day qualifying hospital stay for SNF
coverage.
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APPEALS
Administrative Law Judge Hearing
 SNF case
• Three-day qualifying hospital stay established
by ALJ decision on observation status
• Care at SNF met definition for covered
SNF care (daily skilled care)
• Have facility nurse testify
 If SNF case not yet scheduled for hearing,
have facility re-bill as a covered stay
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FAVORABLE DECISIONS
 ALJ Appeal No. 1-517883673 (Jan. 8, 2010),
http://www.medicareadvocacy.org/InfoByTopic/Observatio
nStatus/Decisions/VT_ALJ_01.10.pdf
• Patient required monitoring, assessment, intravenous
fluids (including intravenous morphine)
• ALJ overruled Maximus Federal Services and held
entire 5-day hospital stay was covered
• ALJ relied on Medicare Benefit Policy Manual, CMS
Pub. No. 100-02, Ch. 1, §6; and QIO Manual, CMS
Pub. No. 100-10, Ch. 4, §4110, describing complex
medical judgment that considers patient’s medical
history, current medical needs, severity of signs and
symptoms
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FAVORABLE DECISIONS
 Medicare Appeal No. 1-496442359 (Nov. 10,
2009),
http://www.medicareadvocacy.org/InfoByTopic/O
bservationStatus/Decisions/MN_Maximus_11.09.
pdf
•
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Patient, who had been fully oriented at his assisted
living facility, went to hospital with delirium, “an
acutely life-threatening condition”
Maximus relied on Medicare Benefit Policy Manual,
Pub. 100-02, Ch. 1, §10, and Program Integrity Manual,
Pub. 100-08, Ch. 8, §6.5.2, to authorize inpatient
coverage for entire 5-day period
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FAVORABLE DECISION
 ALJ Appeal No. 1-380068132 (April 9, 2009),
http://www.medicareadvocacy.org/InfoByTopic/O
bservationStatus/Decisions/WI_ALJ_04.09.09.pdf
• ALJ addressed denial of 30-day SNF stay for lack of 3•
day hospital stay, when resident had been in hospital for
13 days
ALJ found resident met hospital stay and needed and
received Medicare-covered care in SNF
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FAVORABLE DECISIONS
 ALJ Appeal No. 1-424979831 (Dec. 9, 2009),
http://www.medicareadvocacy.org/InfoByTopic/O
bservationStatus/Decisions/CA_ALJ_inpatient_Int
erQual_12.09.pdf
•
•
Not observation case, but denial of continued hospital
care
ALJ found inputs in InterQual were subjective and
“inconsistent with the known medical treatment”
provided to patient
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NATIONAL ADMINISTRATIVE
ACTIVITY
 Advocacy in 2003 and 2004 to get all time in
hospital counted towards meeting 3-day qualifying
hospital stay (letters to CMS on behalf of national
organizations)
 CMS, Notice of Proposed Rulemaking, 70 Fed.
Reg. 29069, at 29098 (May 19, 2005), asked if
observation time should be counted
 CMS, final rule, 70 Fed. Reg. 45025, at 45050
(Aug. 4, 2005), while acknowledging most
commenters supported change, CMS declined to
change policy; “continuing to review this policy”
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NATIONAL ADMINISTRATIVE
ADVOCACY
 CMA sent letter to CMS setting out legal and
factual concerns (Jan. 2009)
 Meeting with Dan Schreiner, Medicare
ombudsman (Spring 2009)
 Meeting with Program Integrity Group, CMS
(Spring 2010)
 Meeting with Jon Blum, Deputy Administrator;
Director, Center for Medicare, CMS (Sep. 2010)
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NATIONAL ADMINISTRATIVE
ADVOCACY
 CMS hosted Listening Session, Aug. 24,
2010
• More than 2100 people called in (CMS record)
• Virtually all callers wanted all time in the
hospital to be counted towards meeting 3-day
qualifying hospital stay
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NATIONAL LEGISLATIVE
ADVOCACY
 H.R. 5950, “Improving Access to Medicare
Coverage Act of 2010” (introduced July 29,
2010 by Congressman Joe Courtney, D, CT)
• Counts all time in hospital towards meeting 3•
day qualifying hospital stay
Bill will be reintroduced in 112th Congress in
House and Senate
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NATIONAL ADVOCACY
 Meeting of national groups (Dec. 1, 2010) to plan for 2011
to discuss possible strategies:
• Request meeting with CMS Administrator Berwick and AoA
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Assistant Secretary Greenlee
Federal legislation (re-introduction of H.R. 5950)
Briefing for Congress (tentatively scheduled for March 2011)
Op Ed pieces on observation; more media coverage
Administrative advocacy (opportunity for regulations in annual
update to SNF Medicare reimbursement; implementation of health
care reform law’s sanctioning hospitals for re-admissions of
patients within 30 days of discharge)
Meeting with MedPAC (Feb. 11, 2011)
Litigation
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LAW, REGULATIONS, MANUAL
 Medicare statute, 42 U.S.C. §1395
• §1395d(a)(2)(A) [extended care services]
• §1395x(h) [definition of extended care services]
• §1395f(a)(2)(B) [conditions of payment for extended
care services]
 Medicare regulations, 42 C.F.R. §409.30-.36
 Medicare Benefit Policy Manual, CMS Pub. 10002, Chapter 8,
http://www.cms.hhs.gov/manuals/Downloads/bp1
02c08.pdf
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OBSERVATION STATUS
 Resources
•
•
CMA, Searchable Database of ALJ Decisions,
http://www.medicareadvocacy.org/ALJDecisions/ALJS
earch.asp
CMA, “Observation Status,”
http://www.medicareadvocacy.org/InfoByTopic
/ObservationStatus/ObservationMain.htm
• Includes Weekly Alerts, favorable decisions, major newspaper
articles
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FOR ADDITIONAL INFORMATION
Terry Berthelot
[email protected]
(860) 456-7790
Toby S. Edelman
[email protected]
(202) 293-5760, ext. 104
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