Thursday, October 20, 2016

Twists and Wrinkles in the OIG's New Report on Medicare and Chiropractic

In October 2016, the OIG issued a new report finding "hundreds of millions of dollars" in Medicare overpayments for chiropractice care (report here, trade coverage here.)

Most of the report finds that chiropractic services were provided for maintenance, not acute problems, and asserts that maintenance care is disallowed by a program manual statement (Benefits Manual Ch. 15:240, here.)

CMS responded it could not write an NCD since there was no data for reasonable and necessary determinations of chiropractic services; but if CMS hasn't found data for an NCD, it seems it would be equally difficult to write an LCD.   Chiropractic services for subluxation of the spine are a covered benefit under Medicare statutes (SSA 1861(r) and (s)).

A nonsensical legacy Medicare policy that "maintenance" services are disallowed (in physical therapy) was thrown out by a court in 2013.  It is an interesting point of policy whether that 2013 judgement should apply to all legacy Medicare bans on maintenance services or only the type of maintenance services in the original case (Jimmo v. Sebelius).  More after the break.

Medicare provides coverage guidance by National Coverage Decisions and Local Coverage Decisions; lawmaking a decade ago stated that determinations of what is reasonable and necessary is by definition an NCD or LCD (SSA 1869).   That is: there are many statutory exclusions - such as for eyeglasses - but a statutory exclusion based on the "reasonable and necessary" statute is an exclusion that should be promulgated by NCD or LCD.

Not so in practice.  Many statements of what is reasonable and necessary - or not - appear in Medicare national and local policy manuals and articles.   But both national and local policy cases have reached judges who have ruled that any published "reasonable and necessary" policy decision is a de facto NCD or LCD (even if not styled and named as such) which gives beneficiaries certain procedural rights and appeal processes.

Outside of NCDs, Medicare's main aggregated policy manual for coverage is "Benefit Manual, Chapter 15" which brings together 285 pages of heterogeneous policy concepts of mixed vintages and credibility.  One longstanding concept found there was that physical therapy services or chiropractic services were disallowed if only for "maintenance" to prevent worsening of a condition.  This was never clearly explained, and seems absurd on its face; for example, renal dialysis is also a "maintenance" therapy by this definition and there are countless others, such as monthly injections of biologicals for severe autoimmune disorders.[*]

In January 2013, a federal court case Jimmo v Sebelius, a court threw out the "improvement standard" aka "noncoverage of maintenance" standard used by MACs based on Benefit Policy Manual verbiage.  CMS was required to reverse its position and educate providers it had done so; see CMS fact sheet here and clarification of same by CMS here.  For additional trade press or websites, here, here, here. here, here, here and for the most recent 2016 updates, here and here and here (case returns to court, alleging ineffective efforts at compliance by CMS.)

While I am not an attorney, I have worked around Medicare policy for over a decade and you see legal concepts discussed.  One is how far a court ruling goes, what is the "ruling" and what is "dicta" or merely a side comment of the judge.  For example, in Hays v Leavitt, throwing out the "least costly alternative" concept, did the scope of that case apply (1) only to the drug in the case, or, (2) to all drug pricing, or, (3) to all uses of the least costly alternative concept.   (CMS seems to have implemented the latter position).

In the case of Jimmo, then, does it throw out the "maintenance rule" (which the judge found absurd) (1) only for physical therapy, or (2) for both physical and occupational therapy, and (3) for speech therapy, and (4) what about chiropractic maintenance therapy?  

The OIG report seems to have ignored the existence of Jimmo entirely - OIG lives in a non-Jimmo universe.   CMS staff, in their public responses to OIG's concerns about maintenance services, seem to have not brought it up either.

[*] Another example of the absurdity is a determination that continuous glucose monitors are statutorily excluded because they are used to prevent dangerous high and low glucose excursions in patients who have severe diabetes; this has recently been thrown out as nonsensical in multiple judicial decisions but isn't completely dead yet.