A Federal Judge’s Ruling: CMS & The Maximum Improvement Standard

On the one hand, a new DHHS OIG report concludes that chiropractic care is medically unnecessary after the first 30 treatments. By that point, DHHS insists, maximum improvement has been reached. And on the other? Hmmm…

In 2011, a class action suit (Jimmo vs. Sebelius) was filed by a combination of Medicare beneficiaries & national organizations in Vermont federal court. The suit alleged that DHHS “imposed a covert rule of thumb that operated as an additional and illegal condition of coverage, resulting in the termination, reduction, or denial of coverage for thousands of Medicare beneficiaries annually.”

The lawsuit contended that an “Improvement Standard” was universally applied to deny coverage if a patient’s condition hadn’t improved. It further contended that, as a consequence, Medicare contractors & claims adjudicators were denying coverage given the expectation that the patient was deemed unlikely to improve further – even though care might be necessary to prevent further deterioration and/or maintain the patient’s current condition.

What prompted this class action lawsuit? One plaintiff needed long term physical therapy following a series of mishaps that began with a broken femur. After months of therapy, the patient’s daughter received a letter stating her mother “has reached her highest practical level of independence.” But the family believed she needed continued therapy to maintain the progress she’d already made.

Does this sound familiar if you’re a chiropractor? Chiropractors nationwide should recognize this as a denial based on “medical necessity” – which is just one of many phrases that allude to the same concept:  the patient isn’t going to further improve. So, a dichotomy. The new DHHS concept of 30 maximum treatments vs. a ruling in federal court about “maintenance care.”

In January 2013, as part of a settlement agreement in Jimmo vs. Burwell, (that’s Department of Health & Human Services Secretary Burwell), the Court required that DHHS educate its frontline contractors & providers that the “Improvement Standard” was illegal. However, as time passed, it appeared that CMS wasn’t upholding its part of the bargain. Plaintiff’s attorneys returned to the courts to seek enforcement of the original agreement. In August 2016, Chief Judge Christina Reiss of the United District Court in Vermont ruled that CMS did have to launch an improved educational campaign. You can read the CMS fact sheet here.

Now, this suit wasn’t filed by chiropractic patients. Regardless, as the 2013 class-action lawsuit settlement specified: Medicare must cover skilled care and therapy when they are “necessary to maintain the patient’s current condition or prevent or slow further deterioration.” This is not a narrowly worded opinion that specifies ongoing physical therapy in a specific instance. Instead, it defines a generic concept of ongoing therapy to maintain Activities of Daily Living.

So, we have the settlement agreement & most recent ruling by a federal judge. And then we have the new OIG report. According to the report, Medicare spent $359 million covering “unnecessary” chiropractic care. I’m not sure who defined what “unnecessary” refers to in this context, but I’d bet it wasn’t the same context applied by the federal court in August 2016.

Patients have always had the right to appeal coverage denials. And they also have the same odds of prevailing they’ve always had: virtually non-existent. Is there room to get further, necessary care approved? We don’t know until someone starts to push back against these barriers. For further reading on these topics:

• Enforcing the Medicare Improvement standard.
• The rendered opinion of Chief Judge Reiss.
• CMS fact sheet.

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