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					r#       Department of Health and Human Services
         Office of the Secretary


         OFFICE OF MEDICARE HEARINGS AND APPEALS


                                                                Midwest Field Office
                                                                200 Public Squarê; suite 1300
                                                                Cleveland, Ohio44114
                                                                (216) 6154000
                                                                (21 6) 61 5-4015 (Direct)
                                                                (216)   615-67F{rnx)
                                                                            Fd&*I R
                                                                             qÁJ"f,
 April   e,200e                                                                     -    **q/¡
                                                                                   APt             s

 Commissioner of Connecticut                                                           ,,)
 ïriiil^äï:äffi;â'dvocacv'
                           rnc'
 Center for Medicare Advocacyr lnc.                                       Åâ^ " g,.'... " {ntg
                                                                          w*a¡ncf,!,u,
 P.O. Box   350                                                                     '"      ^lo
                                                                                         aøtÏ,{_
 lVillimanticn CT      06226                                                                 -Þq¡,
 Subject:           Notice of Decision

 To Whom It May Concern:

 Enclosed is the decision of the Adminishative Law Judge (ALJ) on your Medicare appeal. Please
 carefully review this notice and the attached decision.

 Your Appeal Rights

 If you do not agree with the ALJ's decision, you may appeal the decision by filing a Request for
 Review with the Medicare Appeals Council (MAC). Other parties to your appeal and, in some cases,
 the Centers for Medicare and Medicaid Services (CMS) or its contractors may also ask the MAC to
 review the ALJ's decision. If no parry appeals and the MAC does not review the ALJ's decision ar
 the request of CMS or its contractors, the ALJ's decision is binding on all parties. You witt have no
 right to ask a federal court to review the ALJ's decision.

 If you are not already represented, you may appoint an attorney or other person to represent you in
 any filings or proceedings before the MAC. Legal aid groups may provide legal services at no
           rr yuu
 urr¡lrËe. Tf -,^.. ur yutrl rnprtrüçrr[¿tuvri ili1vË üur uornprgte(l or suolruueo an .É\ppomtment oI
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 Representative form, please contact the MAC for further instructions or to obtain a form.

 What to Include in Your Request for Review

Your appeal must identifu the parts of the ALJ's decision with which you disagree, and explain why
you disagree. For example, if you believe that the ALJ's decision is inconsistent with a statute,
regulation, CMS ruling, or other authority, you should explain why the decision is inconsistent with
that authority.



 oMHA-351 (10/07)                        Page 1 of3
You may submit a Request for Review with the MAC in either of the following two ways:

       l.   Complete and submit the enclosed Request for Review Form (DAB-I01).

       2.   Submit to the MAC a written request that contains all of the following information:

                o   The beneficiary's n¿tme;
                a   The beneficiary's Medicare Heàlth Insurance Claim Number (HICN);
                o   The item or service in dispute;
                o   The specific date(s) the item(s) or service(s) were provided;
                o   The date of the ALJ decision;
                a   The ALJ appeal number;
                o   The parts of the ALJ's decision with which you disagree and an explanation of
                    why you disagree; and
                o   Your name and signature and/or the name and signature of your representative.

Pleasë"send ø copy of the   ALf's decßíon   with your Requestfor Revìew.

When and Where to F'iIe the Request for Review

You must submit your request to the MAC within sixty (60) days of receipt of this notice. The MAC
will assume you received this notice five (5) days after the date indicated at the top of this notice
unless you show that you received this notice at alater date. If you file your Request for Review late,
you must establish that you had good cause for submitting the request late.

Your Request for Review should be mailed to:

       Deparhnent of Health and Human Services
       Departmental Appeals Board
       Medicare Appeals Cotrncil, MS 6127
       Cohen Building Room G-644
       330 lndependence Ave., S.W.
       Washington, D.C. 20201

Alternatively, you may fax your request to (202) 565-0227. If you send a fax, please do not also mail
a copy. You must alwøys send a copy of your Reqaest for Review to the other partíes to your
appeal If you do not have the addresses ofthe other parties, please contact our office.

What Procedures Apply to the MAC's Review of Your Appeal

The Medicare regulations at 42 C.F.R. Part 405, Subpart I, apply to this case.

How the MAC May Respond to Your Request for Review

The MAC will limit its review to the issues raised in the appeal, unless the appeal is filed by an
unrepresented beneficiary. The MAC may change the parts of the ALJ's decision that you agree



 oMHA-351 (10/07)                        Page2 of3
with. The MAC may adopt, change, or reverse the ALJ's decision, in whole or in part, or it may send
the case back to an ALJ for ñrther action. The MAC may also dismiss yotr appeal.

Where to Obtain Additional Information About the MAC

Additional information about the MAC is available on the Departmental Appeals Board's website at
http://www.hhs.eovldab/reconsiderationqic.html. You can also obtain additisnal inforrnation by
contacting the MAC at (202) 565-0100.

Questions About the Decision

If you would like additional information   concerning the attached decision, please call or write this
office at: (216) 615-4000

                                                 Sincerely,
                                                      ¿f"*n                      Él

                                                      iI   'i,i,Él
                                                               !     f "        l! .., ,nt
                                                      t¿    l¡
                                                                 ".,,,1";í't.=,').
                                                                                      i.j l __-,*,
                                                                                         _



                                                                                1¿ì



                                                Phillip McAfee
                                                Administrative Law Judse

Enclosures:
       Form OMHA-I 52. Decision


Cc: Maximus
Secure Horizons

Riverside Health Care




oMHA-351 (r0107)                      Page 3   of3
                                  Department of Health and Human Services
                               OFFICE OF MEDICARE HEARINGS AND APPEALS
                                             Midwestern Region
                                               Cleveland, Ohio




                Commissioner of Connectiôut                        ALJ Appeal No.: 1-385476152
                Department of Social Services,
                represented by Center for
                Medicare Advocacy, Inc. (CMA)
                                                                   Medicare Part C

 Beneficiary:
                                                                   Before: Philtip McAfee
 HICN:                                                                     U.S. Administrative Law Judge




                                                          DECISION

After carefully considering the evidence and arguments presented in the record and at the
hearing, the undersigned Administrative Law Judge (ALJ) hereby enters this decision, which is
FAVO-RABLE as to the Appellant, the Commissioner of the Connecticut Department of Social
Services, represented by Center for Medicare Advocacy, Inc. (CMA).


                                                    Procedural Historv

The Commissioner of the Connecticut Department of Social Services (Appellant) authorized
CMA to file this appeal on behalf of a Medicare en¡ollee who was also eligible for Medicaid in
Connecticut at the time of the services at issue. Medicare beneficiary              (Enrollee)
was enrolled in the Evercare@ Plan IP, a Medicare Advantage (MA) plan (CMS No. H0710)
offered by the MA organization United HealthCare Insurance Company or United HealthCare
Services, Inc. (the Plan).' (Ex. F)

rr- - I t                                                  :- +L^ -1^- LrruJ +^ l\,f^Ji^--o    Lo-off^io-ioo   i- oørtqia
          ^ - ----,-:--L:     ^cc^-^s
 lng lvl.¿ì olB¿lluzatrull^-- ullçItiu   ^--^lI*^-+
                                         çlllulllilçIrL    lll Lllç Prdur ^-1.' LU lvlvulvav   uu¡wr¡vr4rvù    r¡ vvru¡¡
counties in Connecticut who were residents in a contracted SNF, as those terms are defined or
described in the Evidence of Coverage (EOC), and who also met certain other criteria. Id., EOC
at 20, 21, 35. The MA orgarÅzation identifies the Plan as a Preferred Provider Organization
(PPO) PIan.Id., EOC at 30 and Summary of Benefits at 1.




     The name of the    MA organization also appears in the appeal record as Ovations or       Secure Horizons.
                                                                                 ALJ Appeal No. 1-3854 76152




The Enrollee was a resident at Riverside Health Care Center, a skilled nursing facility (SNF) in
East Hartford, Connecticut, and this appeal relates to the services provided to the Enrollee by the
SNF on the dates of service (DOS) from taly 7 ;2008 through July 3 I , 2008." The Plan and SNF
had issued a Notice of Medicare Non-Coverage (NOMNC or Noncoverage Notice) to inform the
Enrollee, by and through her representative, that Medicare coverage for Enrollee's SNF level of
care would end on July 6,2008. Id' at56-6I-

CMA sent an appeal request dated August 7,2008 to the MA organization, arguing that the MA
plan should have          SNF levet of care for the Enrollee after July 5, 2008 and through July
                 "ol,rt"d
31,2008. Id. at71-72. CMA apparently includedtheNOMNC withthe appeal request as the
organtzafion determination from which CMA was appealing, and the Appellant provided copies
oith. executed Appointment of Representative and Medical Release forms. Id. at73-76.
The plan responded with its reconsidere d organization determination dated October 1,2008. Id.
 at6g-69.In that decision, the MA organization stated that the Plan had authorized coverage for
the day of July 6, so the first noncovered date was July 7,2008. Id. The MA organizafion upheld
its eariier organtzation determination to deny Plan coverage because the Plan determined that the
Enrollee did not require and receive skilled level of care on the remaining dates, July 7 through
Juty 31, and that "Custodial Care is a benefit exclusion" under the Enrollee's Plan. Id. at 68-

Because the Plan's reconsidered determination was not fully favorable to the Enrollee, the Plan
forwarded the appeal to the independent outside entity retained by Medicare for reconsideration,
as required by iegulation.42 C.F.R. ç 422.590(a)(2). Maximus Federal Services (Maximus) is
the independent outside entity that was retained by the Centers for Medicare and Medicaid
Services (CMS) to review those MA plan organization determinations that are appealed by Plan
enrollees.

On December 1, 2008 Maximus issued its decision upholding the MA organization's rulings that
the PIan was not required to provide coverage for the SNF services provided to the Enrollee on
the dates at issue. (Ex. C, pages 8-11) Appellant disagrees with the Maximus decision regarding
the Plan's termination of coverage for services provided by the SNF to the Enrollee after July 6,
2008, and CMA sent a request for ALJ hearing to Maximus on January 2I,2009. Id at4.

Maximus forwarded the appeal request and the case file to the Office of Medicare Hearings and
Appeals (OMHA), where it was received on January 28,2009. Id. at 5. The ALJ conducted a
héaring by means of a recorded video-telephone conference (VTC) originating in Cleveland,
Ohio, ón March 10,2009. Margaret Murphy, Esq. of CMA presented the Appellant's argument.
Ramiro Pedrozq a United HealthCare Analyst, testified on behalf of the MA organization and
Plan. Troy Shaffer, Director of Process Improvement with United HealthCare, was in attendance.
Exhibits A through F were admitted into the record.




 t    The earliest appeal related. to the Enrollee's need for skilled services after July 6, 2008' but the MA
 organization             to the Plan's coverage of skilled care provided on July 6 in its reconsidered organization
              "o*mit.d
 determination, so the remaining dates at issue begin with July 7,2008.


                                                   Page 2   of l0
                                                                      ALJ Appeal No. l-3854 76152




                                               Issue

The issue on appeal is whether the provisions of the Medicare statute and regulations or the
Plan'l contracfialõbligatrõnluntlêr its pOliey with the Enrollee-require the Plan-to cover and pay
for the skilled nursing services after July 6,2008.


                                         Findines of Fact

The ALJ finds that the following facts are established by a preponderance of the evidence:

At the time of the dates at issue herein, the Enrollee was 89 years old andhad been a resident at
the Riverside Health Care Center, where she had generally been receiving custodial care. (Ex. E)
She had been admitted to the facility in October 2002 due to hip pain and frequent falls. Id. at l.
The patient's representative was her niece                     whom she had designated as her
agent in a Power of Attorney (POA) instrument that she had signed on July 29,1999. (Ex. C)

In 2008, the facility was a "contracted SNF" within the MA organization's Plan network.     .Id.


In  2008, the Enrollee had long-standing diagnoses of insulin-dependent diabetes mellitus
(IDDM), dementia, hypertension, hypothyroidism, congestive heart failure (CFIF), syncope,
bipolar disorder and delirium. (Ex. E) She had recurrent urinary tract infections (JTIs) and was
allergic to penicillin. Id. The Enrollee had also suffered a fracture of the left femur with primary
involvement of the hip.Id.

The Enrollee's attending physician Anil K. Vithala, MD had prescribed the bisphosphonate
alendronate (Fosamax@), which suggests that the patient had osteoporosis, as well as the anti-
convulsant drug phenytoin (Dilantin@), which suggests that she also had a seizure disorder. 1d
The patient also had a modified (thickened liquids) diet and had undergone speech language
pathology (SLP) therapy for treatment of her dysphagia, and the physician had ordered nutri-
tional supplements due to the patient's anorexia and weight loss. 1d

The Enrollee had numerous changes to her medications in early June 2008. (Ex. C, pages 50, 53)
On June 9, she had undergone an upper gastrointestinal endoscopy (EGD) with removal of
multiple polyps in the proximal stomach and with biopsy. Id. at 159. On Jvne 29, personnel
                  in gr¡v                 qn¡{ n#cr
 natioa¡l l-lnnr{ ¡rr fLa nafipnftc rrina r4re, w evÀ e ecfhefer rves nlncerl anå a ttrine snecimen
Ilv ulvvg u¡vvv

collected for culture and sensitivity tests on June 30, she developed a high fever and showed
signs of dehydration. Id. at 48. Evercare Concurrent Review authorized skilled level of care for
the Beneficiary from June 30 through July 6, 2008 due to the foregoing changes in her condition.
(Testimony of Plan witness) During the week of skilled care the Plan covered, the Enrollee
required IV infusions of fluids and potassium, antibiotic therapy including Cipro for a UTI, and a
bladder scan. (Ex. E)




                                            Paee 3   of   10
                                                                       ALJ Appeal No. 1-3854 76152


A Notice of Medicare Non-Coverage on Evercare stationery with "Riverside" handwritten under
the letterhead stated that the coverage of "your current skilled nursing services will end: 716108."
(Ex. C, pages 59-60) Although the patient's name is                         the Noncoverage Notice
was directed to-'Elizabeth Besaw;'' and-the notes erÍered in thsAdditional Information section
of the second page by Jane Rizzio refer to the patient as Elizabeth. Id. af 59-60. The Additional
Information memorializes telephone contact on July 2, by which Ms. Rizzio informed
           the patient's representative, that the patient no longer required skilled nursing services
or skilled rehàbilitation services, so her "skilled Medicare coverage" would end on Jrily 6, 2008.
Id. at60.


                                         Leqal Framework

I.   ALJ Review AuthoritY

     A.   Jurísdictíon

An   enrollee who is dissatisfied with the reconsideration decision made by the outside
independent entity retained by Medicare to review MA plan organization determinations may
.*.r.i." appeal rights as provided in the Social Security Act: 42 U.S.C. $ 1395ff. The Social
Security Aõt, ur amended by the Medicare, Medicaid and SCHIP Benefits lmprovement and
protection Act of 20003 @IPA) and the Medicare Prescription Drug, Improvement, and
Modernization Act of 20034 (MMA), (the Act) now provides in section 1869(bXlXA) that a
party appealing the reconsideration decision as to an initial determination is entitled to a nearip
Èefore ?he Secietary of the Department of Health and Human Services (HHS) (the Secretary), if a
sufficient amount remains in controversy and a request for hearing is filed in a timely manner- Id.

To implement the statutory directive, the Secretary has delegated authority to OMHA to
administer the nationwide Medicare hearings and appeals system. See 70 Fed. Reg' 36386,
36387 (June 23,2005). ALJs within OMHA issue the final decisions of the Secretary, except for
decisions that are later reviewed by the Medicare Appeals Council. Id. Seg 42 C.F.R. $ 405.1048.

An ALJ hearing shall not be available to an appellant if the amount in controversy is less than a
stated minimum amount, pursuant to section 1S69(bXlXE)(i) of the Social Security Act, and the
dollar amount is adjusted every year after 2004 to reflect increases in the medical care
component of the consumer price index, pursuant to section 1869(bXlXEXiii). 42 U.S.C.
                                                                                            42 C.F.R.
$ 13-95ff and, as to the adjusted amount, 71 Fed. Pteg. 2247 (January 13,2006). See
$ç +ZZ.S1Z and 422.600. An appellant's request for ALJ hearing is timely if
                                                                                   it is filed within
ri*ty Auyr after receipt of the previous determination or decision, which in this cage would be the
Maximus reconsidered determination or reconsideration. See 42 C.F.R. ç 422.602.




     Pub. Law 106-554, app.F, 114 Stat.2763,2763A-463.
     Pub. Law 108-173, ll7 9tat.2066.



                                              Page 4   of l0
                                                                       ALJ Appeal No. 1-3854 76152




      B.   Scope ønd Standørd of Review

This Medicare part C appeal is governed primarily by the ALJ hearing regulations codified in
Sutp¿trt M-of Part 42¿* of Tîfl€-42-of the eode of FcderalRegularions(C.F.R.); 42 e.F.R-
                                                                    governed by Subpart I of Part
$$ 4:22.560 through 422.626. To a lesser extent, the appeal is also
ÀóS of the same title, for cases filed after the MMA and BIPA amendments to the Act became
effective. 42 C.F.R. $$ 405.900 through 405.1140. Medicare appeals generally are also governed
by some Social S.ecurity Administration (SSA) regulations in Subpart J of Part 404 of Title 20.
20 C.F.R. $$ 404.900 through 404.999d.

Centers for Medicare and Medicaid Services (CMS), the HHS agency that implements policy for
the Medicare program, enters into contracts with carriers and fiscal intermediaries for processing
claims submitted for Medicare reimbursement. CMS also contracts with review entities such as
Maximus, the independent outside entity that reviews the organization redeterminations made by
MA plans that are adverse to enrollees. Appeals from Maximus reconsiderations in Medicare
Part C appeals generally proceed to the ALJ level.

The issues before the ALJ "include all the issues brought out in the initial, reconsidered or
revised determination that were not decided entirely in fthe appellant's] favor. However, if
evidence presented before or during the hearing causes the administrative law judge to question a
fully favorable determination, he or she wilt notifu [the appellant] and will consider it an issue at
the hearing." 20 C.F.R. 5 404.946(a). The OMHA is staffed with ALJs who conduct "de novo"
hearings. 70 Fed. Reg. 36386 (June 23, 2005).

il.   Principles of Law

      A.   Statutes

Congress established Medicare, the federal health insurance program for the aged and disabled,
by enacting Title xvIII of the Social security Ãct,42 u.s.c. $$ 1395, 1395a-hhh, commonly
cited as sections 1801 through 1897, the primary statute governing the program. Provisions of
the statute that relate to Medicare Part C are in sections 1851 through 1859. 42 U.S.C. $$ 1395w-
21 through 1395w-28.

When Congress passed the Balanced Budget Act of 1997 (BBA), the legislation added sections
'!8-{'! fhrouoh '1859 to the Act to establish Medicare Pút C, then k:rown as
                                                                             "Mcd,ieare*Choiee"
(M+C). The legislation incorporated private managed care organizations more fully into the
Medicare system in order to offer new plan options for health care and to accommodate delivery
of medical services by traditional managed care plans such as HMOs, plans that had experienced
problems under the reimbursement model used for Parts A and B.




                                            Pase 5   of   10
                                                                    ALJ Appeal No. 1-3854 76152




The MMA amendments to the Act replaced the M+C program with the Medicare Advantage
(MA) program, making more choices of plan options available, incorporating competition into
ìt p1* puy*"nt-system; MMA also allows MAalansto offerprescription drug coverage as-
   "
¡4e-pp it*r. Congress believed that the competitive pressure among the various plans would
lead to better benefits for enrollees, reduce enrollees' premiums and their cost sharing, and
improve networks and services. Currently, most MA plans are coordinated care plans, including
treåtttr maintenanc e organrzations (HMOs) and preferred provider organizations (PPOs).

Generally MA plans must provide coverage for the benefits that would be available to the
Enrollee under Medicare Parts A and B, except for hospice care. 42 C.F.R. ç 422.101 and 42
U.S.C. g 1395w-22(a). Traditional fee-for-service Medicare allows beneficiaries to choose their
owïr. prãviders witÈrout limitation as to geographical area, medical specialty, or network
ut *g.*"nt¡,.but it does not cover all preventive health care measures, most dental care, hearing
exams, or v6lon care. MA plans generally emphasize preventive care, cost containment and
utilization management.

plans contain costs by relying upon the cost-sharing mechanisms of deductibles, copayments,
and coinsurance. The MA plans control utilization by requiring an enrollee to obtain a referral
from the primary care physician before consulting most specialists and to request approval or
 authorizxion from the MA organization to seek treatment outside the plan network of providers,
except in situations involving an enrollee's need for emergent, urgent, or out-of-area care.


    B.   Regulation

Section 1871 provides, "The Secretary shall prescribe such regulations as may be necessary to
carry out ttre administration of the insurance programs under [Title XVIII]." 42 U.S.C. $ 1395hh.
As áuthorized by the Secretary, CMS issues Medicare regulations, which are generally located in
the C.F.R. under Title 42.In the past, the SSA was the federal agency implementing Title XVII
and SSA-issued regulations that continue to govern Medicare determinations and appeals are
also in the C.F.R., primarily in Part 404 of Title20.

As with Medicare Parts A and B, the Medicare Part C managed care program is administered by
FIHS through CMS, the agency that issues the implementing regulations, and the regulations
governing putt C plans and enrollees are generally located in Part 422 of Title 42. CMS also
ieviews MA plans for compliance with the Act and regulations, certifies plans that meet its
requirements, reviews and approves plan marketing materials, and disseminates information
abåut the plans that are availaùie to current and potential beneficiaries.




                                           Page 6   of   10
                                                                                                ALJ Appeal No. 1-3854 76152


Regulations that govern posthospital skilled nursing facility caÍe are primarily in Title 42 of the
C.È.R., in Parr +O-e, SuUparts C and D.42 C.F.R. $$ 409.20 through 409.36. The amounts of the
payments to SNFs for hospital insurance benefits are determined in accordance with Part 413.
bustodial care as described in section 41 1 . 1 5(g), "is any care that does not meet the requirements
for eoverago as SNF eare ãs scr fórthin gg 4093f through 409.35:' which arqthe regulations
that govern most directly the determinations as to whether nursing or rehabilitation services are
skilled services and whether a beneficiary's level of care is custodial or skilled. 42 C.F.R.
$$ 409.31 through 409.35, detailed below.

The level of care requirements for SNF services are delineated at section 409.31, with examples
provided at section 409.33. Id. First, the definition of "skilled nursing services" at section
 qOg.Zl(a) has three elements; the services must: (1) be ordered by a physician, (2) require the
skills of one of certain listed professionals, and (3) be furnished directly by, or under the
supervision of, one of the professionals listed. In addition to the first three requirements, section
 q1g.Zl(b) presents three conditions that must also be met. Id. To qualiff as skilled nursing
services or skilled rehabilitation services, the Beneficiary's level of care must also: (a) be
required on a daily basis, that is, satis$ing criteria as to frequency prescribed in section 409.34;
(5) follow a quatifying hospitalization; and (6) be services that, 'oas a practical matter, can only
be provided in a SNF on an inpatient basis." Criteria that are listed in section 409.35 govern the
" pt actic al matfef ' considerati on. I d.


In addition, section 409.32 states the criteria for skilled services and for evaluating a
beneficiary's need for them. Id. The definition of a skilled service is provided at section
a09.32(a). Id. Then, however, section 409.32(b) allows for services that are not so inherently
complex as to qualiff as skilled services if "special medical complications" exist and are
documented by physician orders and nursing or therapy notes. Id. Finally, in considering a
beneficiary's need for skilled services under section 409.32(c), the patient's prognosis is not a
factor in making the determination as to a beneficiary's need. 1d

        S 409.32 Criteria for skilled services and the need for skilled services.
        (a) To be considered a skilled service, the service must be so inherently complex that it can be safely
        and effectively performed only by, or under the supervision of, professional or technical personnel.

        (b) A condition that does not ordinarily require skilled services may require them because of special
        medical complications. Under those circumstances, a service that is usually nonskilled . . . may be
        considered skilled because it must be performed or supervised by skilled nursing or rehabilitation
        personnel.

        (c) The restoration potential of a patient is not the deciding factor in determining whether skilled
        ^^ñ,¡^^^ ^'^ h^^¡^¡
        ùç¡V¡WçÐ ql9llggvgq,   E',an i{ l¡¡ll ra¡arranr
                               Lvgll ll lu¡a lgwvÞrt      ar ma¡l¡¡al
                                                          vl lllvvrwl   imnrmramanl
                                                                        rr¡rP.vrv.r.v¡rr   ¡e rrvr Hvvvrervr a Fe(rv¡r¡
                                                                                           ic nnl nnccíhla v nafionl merr nccd
        skilled services to prevent further deterioration or preserve current capabilities.

The regulations at section a09.33(a) provide examples at subsection (a)(1) demonstrating when
"overall management and evaluation of care plan" constitute skilled services, when "observation
and assessment of the patient's changing condition" constitute skilled services at subsection
(a)(2), and when patient education services constitute skilled services at subsection (a)(3).
Regulation section 409.33(d) includes a list of personal care services, which are not intrinsically
skilled and therefore not qualified for Medicare coverage unless special medical complications
exist that necessitate the involvement of skilled technical or professional personnel in the
Benefici4ry's care, in which case, sectio n 409 .32(b) would pertain to the determinati on. Id.


                                                          Page 7   of   10
                                                                          ALJ Appeal No. l-3854 76152




        C.   CMS Polícy and Guidance

-   Seetion
    establish or change a substantive legal standard governing the scope of benefits or payment for
    services under the Medicare progr¿ùm unless it is promulgated as a regulation by CMS, with the
    only exception being national coverage determinations (NCDs). 42 U.S.C. $ 1395hh; see 42
    C.F.R. $ 405.1060. However, in lieu of binding regulations with the full force and effect of law,
    CMS and its contractors have issued policy guidance describing the criteria for coverage of
    selected items and services in the form of manuals and local coverage determinations (LCDs).

    CMS manual guidance as to Medicare coverage \¡/ith Part C and MA plans is provided in a
    manual that is specific to the MA program. CMS, Medicare Managed Care Manual (MMCM)
    (Internet-Only Manual Publ'n 100-16). Chapter 4 governs Benefits and Beneflrciary Protections,
    and chapter 13 governs Beneficiary Grievances and Appeals, respectively. MMCM, supra.


                                                 Analvsis

    The instant appeal is based upon Appellant's disagreement with the decision issued by Maximus,
    the outside independent entity, affirming the MA organization's reconsidered determination and
    initial organization determination that had been adverse to the Enrollee. Appellant filed the
    request for ALJ hearing in a timely manner. The charges for the SNF services for which the Plan
    denied coverage would have exceeded $120.00, the jurisdictional requirement for ALJ appeals
    requested in 2009. 42 C.F.R. 5 422.600 (which incorporates Part 405 provisions). This appeal is
    therefore properly before the undersigned ALJ in the OMHA Midwest Field Offrce.

    The general statutory rule-that MA plans are to provide member enrollees at a minimum "those
    items and services (other than hospice care) for which benefits are available under parts A and B
    to individuals residing in the area served by the plan" and supplemental benefits as allowed by
    the Secretary pursuant to section 1S52(a)(3)-is set forth in section 1852(aXlXA) of the Act.42
    U.S.C. $ 1395 w-22. As to the Plan herein, one of the supplemental benefits provided to the
    enrollees in the Plan in 2008 is that the requirement for a prior qualifying hospitalization as a
    condition for coverage of SNF services was waived. (Ex. F, Schedule of Benefits) As to services
    provided by an in-network SNF, the enrollees would not pay any copayment or deductible and
    were advised: "You pay $0 for each Medicare-covered skilled nursing facility stay," Id. at 6.

    Because the  MA Plan must cover skilled services in a SNF at least to the extent that the same
    services would be covered under Medicare Part A, the coverage determination in this appeal
    must include consideration of the Part A coverage criteria. If the services provided by the SNF
    on the dates at issue qualified as skilled level of care, then the MA organization is responsible for
    coverage of the services.




                                                Page   I of 10
                                                                                     ALJ Appeal No. 1-3854 76152




Most of the CMS manual provisions governing SNF services are in chapter 6 of the Medicare
Claims Processing Manual (MCPM) (Internet-Only Manual Publ'n 100-4) and in chapter I of
the Medicare Benàfit policy Manual (MBPM) (Internet-Only Manual Publ'n 100-2).In the latter
mAAUà1, CMS-SUmmariZeS itscov-erâge policy as dependent uponfour factors:-

       30 - Skilled Nursing Facility Level of Care - General
       Care in a SNF is covered if all of the following four factors are met:
             o The patient requires skilled nursing services or skilled rehabilitation services, i.e., services
                 that must be performed by or under the supervision of professional or technical personnel
                 (see $$30.2 gO.¿); are ordered by a physician and the services are rendered for a
                               -
                 conditìõn for which ihe patient received inpatient hospital services or for a condition that
                 arose while receiving care in a SNF for a condition for which he received inpatient hospital
           ,     services
           r   The patient requires these skilled services on a daily basis (see $30.6); and
           .   As a practical matter, considering economy and efficiency, the daily skilled services can be
                 provided only on an inpatient basis in a SNF' (See $30.7.)
           .   The services must be reasonable and necessary for the treatment of a patient's illness or
                 injury, i.e., be consistent with the nature and severity of the individual's_ illness or injury,
                 the individual's particular medical needs, and accepted standards of medical practice. The
                 services must also be reasonable in terms of duration and quantity.
       lf any of these four is not met, a stay in a SNF, even though it might include the delivery of some
       skilled services, is not covered. For example, payment for a SNF level of care could not be made if
       a patient needs an intermittent rather than daily skilled service'
       MBPM, supra, ch.8, $ 30 (punctuation and capitalization as in original).

The Appellant argues that the Beneficiary continued to require skilled nursing services after July
6, and throughout the remainder of the month because her Dilantin regimen continued to change
after toxicity and withdrawal, which required skilled observation and assessment. (Argument of
Attorney Murphy for CMA) The Enrollee continued to have blood in her urine, anorexia and
weight loss, unstable blood sugar levels and poorly managed diabetes throughout the month.

The Appellant enumerated the numbers of incidents of hyperglycemia, changes in medications,
and days on which the Enrollee required a catheter during the month of July 2008. The medical
records support the Appellant's assertion that numerous orders were entered during the dates at
issue to make changed to the Enrollee's prescription medications. (Ex. E) The results of blood
tests prompted many changes to the Dilantin dosage, including the new orders entered on July 7,
July 10, JuIy 17, July 20, and July 30, 2008. Id. af 23-25,42,45,47.

The Plan ægues that two physicians, one with the Plan as well as one with Maximus, reviewed
the medical records, and both of them concluded that the Enrollee did not require skilled level of
 care aftü July 6, 2008. (Testimony of Pian representative Mr. Pedroza) Those recommenciations
and the "qualified opinions" provided by medical professionals should have more weight than
the observations of the attomeys for the Appellant, who have not presented medical credentials.

Various diagnostic tests and studies conducted during July reflect the medical professionals'
concerns about the Enrollee's continued hematuria, unstable blood sugars, anorexia and risk for
malnutrition. (Ex. E) For example, frequent blood tests continued so that doctors could mónitor
levels of Dilantin, albumin, and hormones related to thyroid function' Id' onJuly 9, abdominal
and pelvic ultrasound imaging as well as studies of the patient's kidneys, ureters, and bladder
(KUB) were conducted, and gastroenterologist Dr. Gazi provided a consultation.Id. at23,70-71.


                                                    Pase 9   of   10
                                                                      ALJ Appeal No. 1-3854 76152




Although cytology reports during the DOS concluded that the Enrollee's wirie showed no
evidencò of bludã.t d*".r, the iaboratory report as to the examination of the cloudy urine
speeimen-colleeted on July-14 noted-trehronieinflammatory changes presenll2 and the report as
tå the clear urine collected on July 16 showed "marked acute inflammation" and recommended
clinical correlation. Id. at 158, 161. At the end of the month, the Enrollee had a normal
abdominal x-ray on July 28, but an abdominal ultrasound conducted on the same date revealed
.,multiple shadowing gallstones," supporting a diagnosis of cholelithiusis.Id' at12.

The medical documentation supports the conclusion that the Enrollee had special medical
complications that allow for the application of provisions in section 409.32(b), elevating services
that are not inherently skilled to à skitled level of care due to specific medical concerns. 42
C.F.R. $ 409.32(b¡. iit<eøse, the record provides evidence that the Enrollee's care required
overall management and evaluation of the plan of care, as described in section-409.33(a)(l).or
observation and assessment of the patient's changing condition, as described in section
a0e.33(a)(2).42 C.F.R. $$ 409.33(a)(l) and (2).

The Enrolee required skilled level of care and the services provided by the SNF to the Enrollee
on the dates at iisue could only be safely and effectively performed by, or under the supervision
of, professional or technical personnel. The patient had special medical complications, and she
reqùired overall management and evaluation of the plan of care and observation and assessment
as ìo her changing              situations that raise the level of care to skilled care even if the
                     "ondition,been inherently skilled. The SNF services at issue would have
component servicés had not
qualified for coverage as skilled care under original Medicare Part A, and the Plan is therefore
required to cover the SNF services provided on the dates at issue.

                                       Conclusions of Law

Under the provisions of the Medicare statute and regulations and under the terms of the Plan's
policy with the Enrollee, the MA organization was responsible for payment for the SNF care
þto't'iaea to her from July 7, 2008 through July 31,
                                                     2008.

                                              Order

In accordance with this decision, the MA organi zation is hereby DIRECTED to cover skilled
nursing services provided to the Enrollee on the dates at issue.

                                                         SO ORDERED.

 nut"a,      L{
                  lal I o 1
       T                                                 Phillip Mc
                                                         U.S. Administrative Law Judge

Enclosures: Form OMFIA-56
            Exhibit List




                                            Page 10 of   l0

				
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