Monday, October 29, 2012

The Landscape for Rehab After the Landmark Medicare Class-Action Lawsuit



A landmark settlement of a class-action lawsuit against Medicare may change how patients with chronic disabling conditions receive care. Until now, patients with chronic progressive conditions are considered ineligible for, or discharged from, rehabilitative services such as physical therapy and occupational therapy if they are deemed "unable to improve" or to have "plateaued".

The following New York Times articles describe the class-action lawsuit and the settlement which is pending judge approval:

Several patient, healtlh, and legal advocacy groups joined together in the lawsuit against Medicare. The decision, if accepted by the judge, will have profound consequences for patients whose conditions are expected to follow a course of progressive decline. The advocates argue that for certain conditions--maintaining an individual's functional stability, or at least slowing down decline and impairment with skilled rehabilitative care, should be covered even though the individuals are not expected to "improve."

It is expected that Medicare will rewrite it's contract manuals--a process which will likely require tremendous input from patients and health providers. The potential for all involved parties to fear a 'slippery slope' with this settlement is real. As one SNF physician commented to me, "I worry for some patients we might end up rehab'ing them to death."

I can foresee that key factors will be 1) distinguishing between those rehabilitative programs which can and should be taught to caregivers and patients to continue on their own, and those programs which truly require a skilled therapist to execute; 2) distinguishing between a limiting but chronic stable condition (such as a fixed hemiplegia following stroke) and a truly degenerative condition (such as Parkinsons or MS) which could potentially be slowed with appropriate pharmacologic and rehabilitative care; and 3) ensuring that patients and families do not mistake this change in Medicare coverage to mean longterm care (which remains self-paid or via Medicaid benefits).

That said, this class-action lawsuit brings up a tenet which is core to geriatrics--there are many conditions (I dare say most conditions) geriatricians address which will never "get better" but which we strive greatly to stabilize or slow down. So, despite the fears of abuse, fraud, and overuse of rehabilitative services without careful understanding of their role in a patients' outcome, don't we, as geriatricians, want to use all appropriate possible therapies to MAINTAIN or SLOW our patients' functional decline?

I think the answer is yes.

The next step? How the settlement and revised Medicare manuals unfold will take our participation and input.

by: Helen Kao

9 comments:

Jennifer Brokaw said...

This underlines the need to manage expectations of the family and the patient and the role for advance care planning!

John Morris MD said...

I am very concerned about this ruling. Skilled facilities often "rehab" people who are dying now. They have a financial interest in continuing skilled Medicare Part A days. These patients would be much better served with hospice, and the holistic patient and family care. I am concerned that with this ruling that SNF's will continue to delay hospice referrals in favor of higher rehab reimbursement.

Christopher Langston said...

Dear Helen and Eric - Thanks for mentioning this proposed change to the Medicare regulation and *I* hope payment practice.

It concerns me that you and your commentatorsrs to date are so negative about this benefit expansion. I will address your concerns later, but I just wanted to observe that the prototype beneficiary is someone with Parkinson's or Cerebral Palsy who needs rehab or home based skilled therapy to maintain function or slow decline. That these people will no longer be denied this care on the grounds that they are not improving would seem like a victory for patients and the geriatric principles that call for a focus on maintaining function.

If I understand you and your commentators concerns correctly, you are worried that patients who are soon to die may be discharged to SNF (without hospice) and cite a study showing that they already are.

To which I would reply then that this change in the "improvement standard" would seem to be moot with regards to discharge to SNF unless you are actually arguing the that the improvement standard has been keeping people out of SNFs and sending them home or to the few residential hospices.

Moreover, I think your tacit proposal of reversing this benefits expansion is an poor solution to inappropriate SNF/Home Health admissions. If providers are discharging inappropriately and SNFs and Home Health agencies are admitting inappropriately for reasons of ignorance, unwillingness to give bad news, or simple greed, there are other remedies you should seek to these problems before you limit benefits for all. (The analogy of opiates comes to mind where many palliative care people argue that despite the potential (reality?) for abuse, these drugs need to continue to be available for those who need them.)

Finally, what I most wanted to say is that credit for this victory (if it is one) should also be given to Steve McConnell at the Atlantic Philanthropies who made grants to stake the Center for Medicare Advocacy to almost $1,000,000 for their litigation. I helieve the benfits are much greater than this investment, but I suppose only time will tell.

Eric Widera said...

Chris,

Thanks for your comment. I actually think the results of this settlement are in line with how we should be caring for individuals living with chronic progressive diseases, whether it be MS, Parkinsons, heart failure, COPD, or dementia. Maintenance of a current functional state or slowing the decline of function is the very heart of how I was taught to do geriatric care. So I am actually very pleased by the settlement, even though I see my words do not convey this with enough clarity (that's what happens when you write a post in the middle of the night).

I do remain concerned though about the unintended consequences of this settlement. Even though the prototype beneficiary include CP patients, these patients in truth make up a tiny minority of patients seen in post-acute care settings like SNFs. As I do not know the details of how this settlement will play out, I worry about making too many assumptions, but what is clear to me is that our current system of post-hospitalization skilled nursing care is completely inadequate in caring for a population that are at high risk for dying in the first 30 days of their stay. As opposed to hospitals where palliative care is becoming ubiquitous, skilled nursing facilities have little access to to any forms of palliative care and little education about end of life care.

Again, I dont want to say that this benefit's expansion is a bad thing. I am encouraged that more of individuals will now have access to therapy to maintain or slow functional decline, however one of the main settings that this therapy is likely to occur - SNFs - are poorly set up for dealing with the end of life care needs of this population.

Eric

PS. and yes, I think the "improvement standard" has been keeping people out of SNFs - wasn't limiting utilization one of the points of the standard? (again, not to say that I agree with it)

Eric Widera said...

Chris,

Thanks for your comment. I actually think the results of this settlement are in line with how we should be caring for individuals living with chronic progressive diseases, whether it be MS, Parkinsons, heart failure, COPD, or dementia. Maintenance of a current functional state or slowing the decline of function is the very heart of how I was taught to do geriatric care. So I am actually very pleased by the settlement, even though I see my words do not convey this with enough clarity (that's what happens when you write a post in the middle of the night).

I do remain concerned though about the unintended consequences of this settlement. Even though the prototype beneficiary include CP patients, these patients in truth make up a tiny minority of patients seen in post-acute care settings like SNFs. As I do not know the details of how this settlement will play out, I worry about making too many assumptions, but what is clear to me is that our current system of post-hospitalization skilled nursing care is completely inadequate in caring for a population that are at high risk for dying in the first 30 days of their stay. As opposed to hospitals where palliative care is becoming ubiquitous, skilled nursing facilities have little access to to any forms of palliative care and little education about end of life care.

Again, I dont want to say that this benefit's expansion is a bad thing. I am encouraged that more of individuals will now have access to therapy to maintain or slow functional decline, however one of the main settings that this therapy is likely to occur - SNFs - are poorly set up for dealing with the end of life care needs of this population.

Eric

PS. and yes, I think the "improvement standard" has been keeping people out of SNFs - wasn't limiting utilization one of the points of the standard? (again, not to say that I agree with it)

ken covinsky said...

Chris--I did not really see Eric's or Helen's comments as suggesting this policy change is not a good thing--let alone that it should be reversed. I actually think they are saying that the new policy is good, but our enthusiasm needs to be tempered by the knowledge that we still do a terrible job getting the right care to the right older patient at the right time--and SNF use is part of this problem. The full benefit of this rule change will not be realized until this larger contextual problem is addressed--and we have a long way to go.

A few thoughts:

It was utterly absurd that rehab and SNF care was limited to elders who are improving. It is of course the case that this type of care often helps frail elders by preventing or slowing decline.

However, it just seems undeniable that SNF care is sometimes used when patients really need a more palliative focus. Many of us think this happens all the time in elders being discharged from the hospital. The patient is not doing well, and it is clear they will not function well at home. What they really need is a big focus on symptom control and attention to the quality of life of their patient and caregiver. However, because it is not recognized that perhaps the goals of care should be shifting as the elders health is entering a downward trajectory, the elder is sent to SNF because it is not clear what else to do. The goals of the SNF referral may be undefined.

This is a vexing problem because there are a lot of issues at play. There are clinical and training issues---we do not recognize that the patient's health as entered a new phase---and even when recognized, we do an awful job of talking to and guiding patients and families. But there are big policy problems as well. One is the difficulty getting palliative services to patients when that is what is really needed, but the patient does not meet criteria for hospice or is not interested in hospice. But also, as Eric has alluded to, there are enormous financial incentives that conspire against palliative care and hospice.

Atlantic philanthropies and the Center for Medicare Advocacy should feel good about what they have accomplished here. But I hope they recognize that this is just a step, and they have a LONG way to go. SNF is just one of a group of services available to frail older patients, and we need to do more than just improve access to SNF. We need policy changes to make sure older patients get whatever service is in their best interest, with artificial rules and barriers no longer conspiring against them.

Eric Widera said...

As usual, Ken says it much more eloquently than I ever could. Want to be my copy editor Ken?

Christopher Langston said...

Thanks for helping me to better understand your position. I was being too sensitive.

I certainly agree that for many people discharged from hospital to SNF, hospice (concurrent hospice/palliative care) would be a very valuable service and more valuable than rehab services.

Perhaps better requirements for pain management and care planning for rehab SNF stays would help?

One complexity I know I don't understand is when a discharge to a nursing home is for skilled rehab versus custodial care, and when that can shift. Since the skilled services preclude hospice (I think) but custodial don't, this is another important part of practice.

While there is a lot of concern about for-profit hospices taking on long-stay low intensity patients (often living in nursing homes), I think the opposite concern is at least as serious. Stats published last year showed that 32% of hospice stays were <7 days, 25% are <6 and maybe 10% are 2 days.

To the extent that these hospice admissions mean a change in location for the patient as well as a change in payment, I think they are very suspicious. They look like a curative system run amok.

Anonymous said...

I am an occupational therapist in a SNF and I couldn't agree more and it's not just the dying. am a therapist in a SNF and I often feel bullied into continuing therapy on patients who don't want therapy or who could easily be "maintained" with a restorative program and or functional maintenance program. Now our higher ups are saying "remember Medicare was sued so we can keep seeing them". It makes me sick.