PAN Joins Class-Action Lawsuit Against Medicare

Many in the Parkinson’s disease community rely on Medicare to help cover the cost of prescription drugs, therapy, and doctor visits.  When people living with Parkinson’s need physical, occupational, or speech therapy, there is often a set of hard-to-understand rules that govern what types of treatments are covered by Medicare and what types are not.
One factor governing what therapies Medicare will and will not cover is the “Improvement Standard.”  This is a rule set forth by Medicare that says they will not cover therapy or other skilled services if the patient’s condition does not show “improvement.”  This goes for physical, occupational, and speech therapy, as well as home health care, skilled-nursing facility services, and other types of treatment.
Although the Medicare Improvement Standard is not found in any law or regulation – only the Medicare policy manual and local coverage determinations refer to it – patients can end up being denied coverage for their important therapy services.  According to the Center for Medicare Advocacy, the Improvement Standard policy is illegal, but Medicare has been reluctant to change the standard in the past despite advocacy efforts and individual lawsuits.  Historically, when a plaintiff won a lawsuit, Medicare has not appealed so, as a result, only that individual plaintiff would benefit from the lawsuit.
Because this issue affects many in our community, the Parkinson’s Action Network (PAN) joined the Center for Medicare Advocacy in filing a class-action lawsuit today against the Department of Health and Human Services, which oversees Medicare, to remove the Improvement Standard measurement.
The Problem
PAN has heard from advocates across the country that Medicare has denied therapy services because their condition has not “improved.”  This happens often when patients are dealing with cognitive impairments, or when therapists don’t know which goals to set that would mark improvement, thus resulting in denial of continued service.  Mostly, it is left to doctors and other providers to document “improvement” in patients while they receive therapy services. 
But “improvement” is not an appropriate standard for Parkinson’s disease because Parkinson’s is not necessarily rehab-focused like other diseases or conditions covered by Medicare.  Rehab and therapy services are important to improve the quality of life for people living with Parkinson’s, and often symptoms benefit from rehab at the right time.  But, Parkinson’s is a degenerative disease in which it is difficult to measure “improvement” and where successful therapy might mean slower degeneration.  This is why removing the “Improvement Standard” is critical to Parkinson’s patients, so that they may continue to receive therapies and treatments integral to their day-to-day survival.
“Medicare must recognize the sad fact that people with Parkinson’s will not get better over the long term,” said Joyce Oberdorf, PAN Board Member and President and Chief Executive Officer of the National Parkinson Foundation.  “Still, physical, occupational, and speech therapy are essential to maintaining and enhancing quality of life.  We applaud PAN for joining this lawsuit, and stand together to break down this barrier preventing patients from receiving the care they need.”
The Solution
“Administrative advocacy is always more efficient for correcting a bad policy, but when it fails, litigation -- and a nationwide class action in this instance -- is the best way to go,” said Gill Deford, Director of Litigation at the Center for Medicare Advocacy.  “Litigation is often slow, and the outcome can never be guaranteed, but it does hold out a strong possibility of success in this instance.  We are only taking this step because all else has failed.”
According to Deford, Congress will not need to get involved to legislate any needed changes for Medicare.  “In fact, there’s not any need for new regulations to be promulgated.  The existing regulations, in our view, preclude application of an Improvement Standard to deny coverage.  So we think that CMS (Centers for Medicare & Medicaid Services) could simply send out directives to the various contractors and providers making it clear that there is no Improvement Standard, and that, along with some education, would take care of it.”
As the Parkinson’s advocacy voice, we feel it is important to represent our community in this lawsuit so that patients are represented and our community’s voice is heard.  We will be certain to keep you informed as this lawsuit progresses.  Stay tuned for future updates.