Originally published February 6, 2017, last updated February 6, 2017

Medicare Refusing to Cover Physical Therapy, Skilled Care for 'Failure to Improve'

Have you been told that Medicare won’t pay for your physical therapy or skilled care because you’re failing to improve? A 2013 class-action lawsuit settlement was supposed to end this practice and educate the public that Medicare cannot deny coverage for “failure to improve.” But four years later, patients are still being turned away, according to National Public Radio.

Now, the patients and organizations that brought the suit against the Centers for Medicare & Medicaid Services have renewed their federal court battle.

Several organizations report that the government’s initial education campaign, a cornerstone of the settlement agreement, has failed. The NPR story quotes representatives from the National Parkinson Foundation and the American Physical Therapy Association as saying that patients are continuing to be denied coverage today. Many seniors have only been able to get coverage once their condition worsened. But then, when it improved, treatment would stop — until the people got worse and were eligible again for coverage, according to the Kaiser Health News story reported by NPR.

Roshunda Drummond-Dye, director of regulatory affairs for the American Physical Therapy Association, told NPR that “there was a long-standing kind of mythical policy that Medicare contractors put into place that said Medicare only pays for services if the patient could progress."

The settlement agreement, however, had stated that coverage doesn’t depend on the “potential for improvement from the therapy but rather on the beneficiary’s need for skilled care.”

In March 2016, plaintiffs’ attorneys filed a motion for enforcement after they were unable to persuade CMS to carry out corrective measures as outlined in the settlement. In August, the U.S. District judge who approved the 2013 settlement ordered CMS to comply with the settlement agreement. But in January, both parties acknowledge they cannot agree on how to fix the problem. The judge could decide in the next few months what will happen.

In the meantime, the Center for Medicare Advocacy — which, with Vermont Legal Aid, filed the original lawsuit on behalf of five Medicare beneficiaries and six nationwide patient organizations — encourages people to appeal if they are told Medicare coverage is not available for skilled maintenance nursing or therapy because they are not improving.

Even in chronic and progressive diseases where improvement is unlikely, therapy might help stave off decline, health officials and others say.

Maintenance, as the 2013 settlement of a class-action lawsuit specified, is what matters for coverage to continue. Medicare must cover skilled care and therapy when they are “necessary to maintain the patient’s current condition or prevent or slow further deterioration.”