CASE | DECISION | JUDGES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Medicare Appeals Council
IN THE CASE OF Claim For

(Appellant)


 


(Beneficiary)


(HICN)


(Carrier)


DECISION
...TO TOP

This case is before the Medicare Appeals Council on the appellant's request for review of the Administrative Law Judge's (ALJ's) decision dated May 29, 2001. The ALJ found that eighteen skilled nursing visits and eighty-two aide visits from October 1, 1996 to May 31, 1997, were not covered because skilled care "was not reasonable and necessary." The appellant disputes the ALJ's conclusions concerning the beneficiary's need for skilled care during the period at issue. The Medicare Appeals Council grants the request for review under the provisions of 42 C.F.R. § 405.724 and 20 C.F.R. § 404.970, because the decision was not based on substantial evidence.

Medicare pays for home health services, including skilled nursing care and the services of a home health aide, if the beneficiary qualifies for coverage. See Social Security Act §1814(a)(2)(C), 42 U.S.C. § 1395f(a)(2)(C); 42 C.F.R. § 409.42. To qualify for Medicare coverage of home health services, the beneficiary must be (1) confined to the home, (2) under the care of a physician, and (3) in need of either intermittent skilled nursing or skilled rehabilitative care. 42 C.F.R. § 409.42. If the beneficiary qualifies for coverage, Medicare will pay for reasonable and necessary "intermittent" or "part-time" skilled nursing and home health aide services. See Act at § 1861(m)(1) and 1861(m)(4); 42 C.F.R. § 409.40. These services must be furnished under a plan of care that meets the requirements of 42 C.F.R. § 409.42(d).

The beneficiary's homebound status was not refuted by either the fiscal intermediary or the ALJ. The Council finds that the beneficiary was homebound. We further find the services were rendered pursuant to a physician's plan of care (Exh. 7).

Medicare regulations provide that, for coverage of home health care, the beneficiary require and receive intermittent skilled nursing care. 42 C.F.R. § 409.42(b)(3). A service is skilled if it is "so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel." 42 C.F.R. § 409.32(a). The regulations at 42 C.F.R. § 409.33(a) provide examples of services that can qualify as either skilled nursing or skilled rehabilitation services. These services include:

  • Overall management and evaluation of the patient's care plan;


  • Observation and assessment of the patient's changing condition; and


  • Patient education services.

In addition, 42 C.F.R. § 409.32(b) provides that a condition that does not ordinarily require skilled services may require them under certain circumstances because of special medical complications. Under those circumstances, a service that is usually non-skilled may be considered skilled because it must be performed or supervised by skilled nursing or rehabilitation personnel.

In his decision, the ALJ found that the beneficiary's "plan of treatment, medical status and overall condition did not materially change. . . . In this case, the symptoms could have been reported by a non-skilled individual." He concluded that the "beneficiary's medical condition basically had stabilized, and she was primarily receiving personal care services." The Council adopts the ALJ's findings of fact and conclusions as they relate to the period October 1, 1996 to May 2, 1997. However, we do not adopt these findings as they relate to the period May 7, 1997 to May 31, 1997.

The beneficiary's primary diagnosis was chronic obstructive pulmonary disease (COPD). She was admitted to home care on March 6, 1995. She had a history of pneumonia on admission, but that did not reoccur. The plans of care ordered skilled nursing approximately twice a month for observation and assessment of the beneficiary's condition, signs of infection, safety, compliance with medications, and functioning status.

In the request for review, the appellant argues that the beneficiary's condition was unstable throughout the period at issue and that she was at "high potential for serious complications." Thus, the beneficiary needed skilled observation and assessment. Even if some of the individual services were non-skilled, the appellant asserts, those services were an integral part of the skilled evaluation and management of her care plan.

The regulations allow coverage for skilled observation and assessment services "to identify and evaluate the patient's need for modification of treatment or for additional medical procedures until his or her condition is stabilized." 42 C.F.R. § 409.33(a)(2). For the period prior to the beneficiary's hospitalization on May 2, 1997, the ALJ's determination that her condition was not medically unstable is based on substantial evidence. The plans of care - including the condition described, the treatment ordered, and the goals stated - did not change during that period (Exh. 7 at 1-8). The sixty-day summaries by the nurse, recorded on page two of the plans of care, do not reflect any change in the beneficiary's condition or concerns about a decline in functional status. Likewise, the visit notes do not indicate that the nurses were evaluating the beneficiary in order to modify treatment. The visit note on December 13, 1996 states that her status was "at baseline" (Exh. 9 at 4, 6). Her oxygen use remained "as necessary" (Ex. 9 at 7, 9, 13, 16). Her occasional urinary tract infections during the period do not rise to the level of a "predictable recurring need" for skilled nursing services. Home Health Agency Manual § 205.1.C.

The Council further finds that the beneficiary did not need or receive management and evaluation of her care plan, pursuant to 42 C.F.R. § 409.33(a)(1). There was no evidence to indicate the beneficiary had multiple conditions or symptoms that required management of the treatment rendered. Again, the plans of care did not change. The nursing notes indicate that her appetite and fluid intake were fair to good, her oxygen use was stable, and she did not have any significant edema (Exh. 9 at 24-36). There is no evidence that the non-skilled services received by the beneficiary required the management of professional personnel. Accordingly, skilled nursing services were not needed or received from October 1, 1996 to May 2, 1997, and are not covered by Medicare. Home health aide visits rendered during that period are also not covered. 42 C.F.R. § 409.45(a).

However, for the period May 7, 1997 to May 31, 1997, the ALJ's decision that skilled nursing services were not reasonable and necessary is not supported by the evidence. The Council finds that the beneficiary needed and received skilled nursing services.

The beneficiary was hospitalized on May 2, 1997, and received treatment for an exacerbation of her COPD (Exh. 9 at 24, 27). She was discharged to home care on May 7, 1997. After May 7, the beneficiary's condition and care needs changed. Her COPD had progressed so that she was using oxygen continuously. She had two new prescriptions for her COPD - Prednisone and Albuterol - and the Prednisone dosage was tapered from May 12, 1997 through the month of July (Exh. 8 at 8-12). She was also given a new prescription for a urinary tract infection. The new plan of care ordered skilled nursing one to two times a week for four weeks to assess the beneficiary's status and instruct the family on the new medication regime (Exh. 7 at 9). The nursing note dated May 9 indicates that the nurse established a new medicine administration plan. That is a skilled teaching activity under Medicare Home Health Agency Manual § 205.1.B.3. The monitoring of the Prednisone taper also required the skills of a professional.

Finally, given the beneficiary's recent exacerbation of her disease, skilled observation and assessment was reasonable and necessary for several weeks due to an enhanced likelihood of change in her condition, and to evaluate her need for possible modification of treatment. The nursing note on May 16 supports the need for observation, as the nurse intervened when the beneficiary was experiencing an increasingly productive cough with darker secretions after her Prednisone dosage had been decreased. The nurse notified the doctor so that he could evaluate whether to change the dosage.

The Council's findings concerning the beneficiary's need for skilled services during the entire period at issue are in accord with the home health agency's own determination. A summary of care dated February 24, 1999, prepared by the provider, indicates that the services prior to May 2, 1997 do not meet Medicare coverage criteria, but the services from May 7, 1997 to May 31, 1997 are covered (Exh. 6 at 1). Additionally, the contemporaneous physician telephone order notes for the period October 1, 1996 to May 2, 1997 indicate that Medicaid is the proper payor for the services (Exh. 8 at 2-7), but the notes after the beneficiary's hospitalization designate Medicare as the payor (Exh. 8 at 9-15).

Accordingly, the Council finds that the beneficiary needed and received intermittent skilled nursing services from May 7, 1997 to May 31, 1997, and these services are covered by Medicare. The home health aide services meet the requirements of 42 C.F.R. § 409.45 and are also covered. We are unable to determine the precise number of visits covered by Medicare during this period, however, because the bills submitted to the intermediary are not of record. The intermediary is therefore responsible for calculating the number of covered visits as part of effectuation.

The Council adopts the ALJ's findings concerning liability, as they relate to the period October 1, 1996 to May 2, 1997. The beneficiary signed a valid notice of non-coverage. The beneficiary is liable for the cost of the non-covered services.

Findings

    • The beneficiary received eighteen nursing visits and eighty-two home health aide visits from October 1, 1996 to May 31, 1997.


    • The beneficiary did not need or receive skilled nursing care from October 1, 1996 to May 2, 1997. Nursing and home health aide visits rendered during that period are not covered by Medicare.


    • The beneficiary is liable for the cost of the non-covered services.


    • The beneficiary needed and received skilled nursing services from May 7, 1997 to May 31, 1997. Nursing and home health aide visits rendered during that period are covered.


    • The intermediary is responsible for calculating the number of covered visits as part of effectuation.

Decision

It is the decision of the Medicare Appeals Council that nursing and home health aide visits rendered by Staff Builders HHC, Inc. to the beneficiary from October 1, 1996 to May 2, 1997 are not covered by Medicare. The beneficiary is liable for the non-covered services. The nursing and home health aide visits rendered from May 7, 1997 to May 31, 1997 are covered. The intermediary is responsible for calculating the number of covered visits as part of effectuation.

 

September 9, 2003

JUDGES
...TO TOP

Clausen Krzywicki
Administrative Appeals Judge

Bruce Gipe
Administrative Appeals Judge

 

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