~ Excerpted from the January 2008 Issue of LymphLink
The “75% Rule”, Newest Roadblock to Medicare Lymphedema Treatment
CMS is phasing in implementation of a rule referred to as the “75% Rule” to qualify inpatient rehabilitation hospitals and units for reimbursement purposes. Facilities must maintain a particular percentage of patients receiving treatment for one or more of thirteen conditions such as stroke, spinal cord injury, amputation, brain injury, neurological disorders, and certain orthopedic conditions, and does not include lymphedema treatment.
As a result, not only are individuals in need of intensive rehabilitative care being denied based on their diagnosis, but the stability of the entire inpatient rehabilitation system is being threatened as facilities are being forced to downsize or close their doors altogether when they cannot meet their 75% Rule quota.
Stopgap legislation has been introduced (S. 543 Nelson/H.R. 1459 Tanner) that would freeze implementation of the 75% Rule that prevents access to lymphedema treatment. The House recently passed the Children’s Health and Medicare Protection (“CHAMP”) Act of 2007 that includes a freeze in the implementation of the 75% Rule at the 60% threshold indefinitely. The legislation would also allow patients’ co-morbidities to continue to be considered for purposes of meeting the 75% Rule quota.
Medicare Coverage of Compression Garments
Current Medicare policy does not cover the cost of the compression bandages, garments and devices required in the daily Phase 2 treatment of lymphedema. In mid-2000 Robert Weiss and the NLN made formal requests for a National Coverage Determination (NCD) on the treatment of lymphedema. Responses from the HCFA (now CMS) Coverage and Analysis Group centered around the claim that “the supplies, namely the compression garments used for the treatment of lymphedema, do not fall within a separate benefit category set forth in the Social Security Act.” (Dr. Sean Tunis, Director, in a letter dated March 1, 2001 ).
This unsubstantiated statement from HCFA/CMS, the basis for continuing denials of compression bandages and garments, has been disputed by Medicare Administrative Law Judges (ALJs) around the country. Most recently, four different California ALJs ruled in four different cases that compression bandages, sleeves and stockings used in the treatment of lymphedema meet the statutory definition of “prosthetic devices” in §1861(s)(8) of the SSA as expanded by CMS Pub. 100-2, Medicare Benefit Policy Manual , Ch. 15, §120 Prosthetic Devices.
On January 2, 2007 a request was made to CMS to add over 100 new and revised codes to the HCPCS Code Book for lymphedema treatment supplies. The CMS HCPCS Workgroup rejected this proposal on November 2, 2007 without referring to legal and medical arguments presented, only stating that "no insurer (i.e. Medicare, Medicaid, Private Insurance Sector) identified a national program operating need to establish unique codes to distinguish all the products listed in this application. Existing codes adequately describe the array of products available."
In a recent discussion with SADMERC, the Medicare contractor responsible for developing and maintaining HCPCS codes, I was asked whether I was working with the manufacturers, since I have no standing to submit specific requests for product coding. In August 2006, while preparing the formal request for HCPCS code changes, I contacted major manufacturers of compression bandages and garments (i.e. Bellisse, BSN Jobst, CircAid, Derma Sciences, Hartmann-CONCO, Innovative Medical, Juzo, KT Medical, Lohmann Raucher, Medi, Lohmann, Peninsula Medical, Sigvaris-Ganzoni, Solaris, Telesto) asking them to submit requests to list their products as prosthetic devices with an L-code to demonstrate that there is a need for change. To my knowledge, no formal requests were submitted.
Medicare Contractors Are Inappropriately Denying Medicare Payment
A new study finds that a growing number of inpatient rehabilitation hospitals and units are inappropriately denied Medicare payment for care provided to their patients. The study, Limiting Access to Inpatient Medical Rehabilitation, Chicago, July 2007, commissioned by the American Hospital Association (AHA) and conducted by United BioSource Corporation (UBC), collected data from 72 inpatient rehabilitation facilities in 20 states from January through July 2007. For this sample, Fiscal Intermediaries—private companies that work for CMS to process Medicare bills—initially denied payment for an alarming 80 percent of inpatient rehabilitation hospital bills reviewed, equaling more than $25 million in Medicare payments that were withheld from these facilities. The report found that 63 percent of denied bills that had completed the appeals process were overturned, resulting in nearly $6 million dollars being returned to hospitals.
What Must be DoneThis effort requires support from patients, providers, suppliers and manufacturers to get CMS to change their lymphedema treatment coverage policies. Only if beneficiaries, providers and suppliers appeal every denial of medical treatment for lymphedema, and if manufacturers apply for HCPCS codes for their full line of lymphedema products, can we impress on CMS that there IS a program operating need for new coverage policies and codes for the treatment of lymphedema.
Robert "Bob" Weiss, M.S.
NLN LE Legislative Advocate