In the midst of the elections, all the hoopla, and the threats to repeal health reform, I am afraid we’ll miss something really important. Two federal courts have ruled that the Department of Health and Human Services (HHS) is too strict in determining whether Medicare recipients are entitled to coverage of skilled nursing home care and home health care.[i] Since the program’s inception, Medicare has refused to cover nursing home or home health care for “chronic conditions” (those that don’t improve within a few weeks of treatment). As a home care nurse, I can’t adequately express the frustration this can cause: I would be caring for a patient whose pressure ulcer had reached the expected “plateau” and neither improve nor deteriorate for several weeks. If I reported honestly what happened, Medicare terminated coverage – until the pressure ulcer had deteriorated sufficiently. Then I could go back in and treat it, until it again “plateaued.” Then treatment would be the next plateau…well, you get the picture! If I lied “in the patient’s best interests” there was a good chance that the wound would heal. Otherwise, both patient and healthcare professional were caught in a never-ending cycle of treatment/denial/deterioration/treatment/denial/deterioration, until the patient finally developed septicemia and died.

Well, no more! Medicare now must pay for nursing home or home health care services ifthey are needed to maintain a person’s ability to perform routine activities of daily living or to prevent deterioration of the person’s condition. Healthcare professionals no longer need to prove Medicare beneficiaries will improve, as HHS has demanded. The rulings could affect thousands of people with problems ranging from pressure ulcers to multiple sclerosis: Skilled care may be reasonable and necessary and thus covered by Medicare even if the person’s condition is stable and unlikely to improve.  Here are specifics on the two rulings:

1. A Federal District Court in Pittsburgh said Medicare officials had used the wrong legal standard in denying coverage of skilled nursing home care to an 81-year-old woman. After hip replacement surgery, she received skilled nursing care and physical therapy in a nursing home. Medicare terminated coverage after 5 weeks, saying her condition had not improved and was unlikely to improve. In reversing Medicare’s decision, the court said the services were needed to prevent further deterioration—that is reason enough for skilled nursing care.

2. A federal district judge in Vermont ruled that Medicare should not have denied coverage for home health services provided to a 66-year-old woman who had had two strokes. The court said the patient needed home health care to prevent deterioration of her functional ability. So in the future, a Medicare beneficiary need not risk deterioration to justify continuation of skilled care –meaning no more “vicious circles” like those experienced by patients with pressure ulcers!

This is health reform that cannot be repealed or denied – except by the Supreme Court. And that can happen only if the Obama administration appeals both decisions. If they do, one really must wonder just how committed the administration is to healthcare reform!