Medicare's policy on therapy comes under attack

Lawsuit charges government with illegally denying care to thousands of chronically ill recipients

The federal government is illegally denying thousands of chronically ill Americans needed therapies and medical services, five national organizations charged Tuesday in a lawsuit filed in U.S. District Court in Vermont.

The class action lawsuit is the first to mount a broad challenge to a controversial Medicare policy requiring that patients achieve demonstrable improvements in functioning in order to qualify for physical, speech and occupational therapy and skilled nursing care.

If such improvements are absent, Medicare often will refuse to pay for services and medical providers will cut them off.

Critics say that, as a result, stroke survivors, accident victims and people with Parkinson's disease or multiple sclerosis are wrongfully deprived of care that could help them remain independent, maintain current abilities and prevent deterioration.

The policy "has been and is creating major harm," said Judith Stein, executive director of the Center for Medicare Advocacy, which filed the lawsuit with Vermont Legal Aid on behalf of the National Multiple Sclerosis Society, Parkinson's Action Network, Paralyzed Veterans of America, National Committee to Preserve Social Security and Medicare, and American Academy of Physical Medicine and Rehabilitation.

Under the law, Medicare is obligated to provide health care and therapy that are "reasonable and necessary for the diagnosis or treatment of illness or injury," according to the legal complaint. Yet through the years, program administrators have decided that services will only be reimbursed if patients show signs of getting better, the complaint notes.

Asked for comment, a Medicare spokeswoman said the agency had not reviewed the complaint and was "not in a position to comment."

Though a handful of individual lawsuits have successfully challenged Medicare's policy, none of those decisions is binding on the federal health program.

Joining the current legal action are four Medicare enrollees, including Edith Masterman, 79, of Wilton, Maine, who has used a wheelchair since 1949 after suffering a spinal injury in a farm accident.

In an interview, Masterman described being told by a Medicare home health agency a year ago that she did not qualify for services after undergoing surgery for a painful bedsore, recovering in a rehabilitation facility and trying to return home. The home health care agency reportedly said the wound would never heal and a nurse's attention was unnecessary.

Before Masterman's surgery, a nurse had come every other day to help the elderly woman. "They shouldn't refuse care just because someone has a problem that looks like it isn't going away," Masterman said.

Another plaintiff is Miriam Katz, widow of David Katz, 90, of Bloomfield, Conn., who died in December of metastatic rectal cancer. Medicare initially covered his stay in a nursing home but cut off payments for the facility at the end of November. After challenging that decision, Katz received a notice from Medicare saying coverage was denied because "the care you are currently receiving is considered custodial and could be performed by unskilled aides."

In Chicago, Victor Pirsoul, 36, who is not associated with the lawsuit, has been struggling to recover from the aftereffects of multiple sclerosis flare-ups. When he reaches a plateau in his physical therapy, therapists tell him they can't help him any longer because Medicare won't pay. "They say, 'This is all we can do for you; just continue your exercise program at home,' but my parents are elderly and haven't been able to help me with the exercises required," Pirsoul said.

When Pirsoul's condition worsens, as is common with MS, he has been able to obtain more therapy, but the help never lasts long.

"I have definitely declined instead of increasing my mobility and my overall health," he said. "I could have been much, much better than I am now— if only I had some assistance."