Will Medicare Stop Covering Your Condition if You are Not Getting Better?

Does Medicare coverage only exist for medical conditions that are improving or will improve?  Or to put it another way, does Medicare not cover treatments that only maintain the health of an individual with a chronic condition?  That question is being litigated in a federal district court in Vermont.

Several beneficiaries and seven healthcare professional associations brought a court suit again the Secretary of HHS claiming that they or their clients were routinely denied coverage on the basis that the medical condition that was being treated was not going to improve.  Furthermore, these beneficiaries argue that this “Improvement standard” for coverage is a clandestine, covert rule of thumb that the Secretary is enforcing at a local level that was not adopted in accordance with the standards of the Medicare Act, the Administrative Procedures Act, the Freedom of Information Act and as such is also in violation of the Due Process Clause of the Fifth Amendment to the Constitution of the United States.

These beneficiaries and professional associations allege that this “Improvement standard” operates as an addition and illegal condition of coverage that oftentimes results in termination, reduction or denial of coverage for thousands of Medicare beneficiaries annually.  They also argue that this clandestine “Improvement standard” is primarily implemented at the lowest levels of Medicare’s administrative review process, and that it denies coverage when the beneficiary needs maintenance services only.

The District court noted that even though the beneficiaries and associations did not present enough evidence to demonstrate how this “Improvement standard” existed in various local coverage determinations, provisions of the Medicare Benefit Policy Manual, prior judicial decisions, or written administrative decisions, evidence of this “Improvement standard” can be found in the administrative decisions of the beneficiaries bringing this court case who had coverage denied.

HHS argued that none of these beneficiaries or professional groups had standing to bring a court case, and therefore this case could not proceed.  The Secretary argued that all of the beneficiaries had to pursue their claims through the administrative hearing process by challenging a denial of a claim.  The court waived that requirement as the beneficiaries allege violation of procedural rights that could not be resolved by that process.  The court maintained that eventually the court would have jurisdiction, so there was no point in forcing the beneficiaries through a lengthy and expensive process that would eventually result in the court having jurisdiction.  In addition, the court is not being asked to determine the legitimacy of any particular claim.  The beneficiaries and the professional organizations are seeking declaratory, injunctive and mandamus relief.

Even though the beneficiaries admit that regulations and policies do exist as the Secretary argued, that forbid the application of anything resembling an “Improvement standard” (see 42 C.F.R. Secs. 409.44(a), 409.44(b)(3), 409.32(c);  Medicare Benefit Policy Manual, Chapter 7,  Sec. 20.3) the beneficiaries and medical organization argue that  those regulations and policies are being ignored.