(Medicare Benefit Policy Manual)

 If the contractor determines the services furnished were of a type that could have been safely and effectively performed only by or under the supervision of such a qualified professional, the contractor shall presume that such services were properly superv ised when required.  However, this presumption is rebuttable and, if in the course of processing a claim, the contractor finds that services were not furnished under proper supervision, it shall deny the claim and bring this matter to the attention of the Division of Survey and Certification of the Regional Office.    While a beneficiarys particular medical condition is a valid factor in deciding if skilled therapy services are needed, a beneficiarys diagnosis or prognosis cannot be the sole factor in deciding that a service is or is not skilled.  The key issue is whe ther the skills of a therapist are needed to treat the illness or injury, or whether the services can be carried out by nonskilled personnel. See items C and D for descriptions of covered skilled services; and   The amount, frequency, and duration of the services must be reasonable under accepted standards of practice.  The contractor shall consult local professionals or the state or national therapy associations in the development of any utilization guidelines.  NOTE :  Claims for therapy services denied because they are not considered reasonable and necessary under 1862(a)(1)(A) of the Act and, for services furnished on or after January 1, 2013, those denied as a result of application of the therapy caps under 1833(g)(1) or (g)(3) are subject to consideration under the waiver of liability provision in 1879  of the Act.  Although Section 50202 of the Bipartisan Budget Act (BBA) of 2018 repealed the therapy caps and its exceptions process effective January 1, 2018, it did not change provider liability procedures which first became effective January 1, 2013. Section 1833(g)(8) of the Social Security Act (as redesignated by the BBA of 2018) continues to provide limitation of liability (LOL) protections to beneficiaries receiving outpatient therapy services on or after January 1, 2013, when services are denied for certain reasons, including failure to include a necessary KX modifier. (Section 1879 provides LOL protections for reasonable and necessary denials more generally.) Under section 1833(g)(8), the therapist or therapy provider is financially liable for the cost of therapy services provided to a beneficiary above the threshold amount when Medicare denies payment for failure to use the KX modifier to indicate that the services are medically necessary as justified by documentation in the medical record. In or der for the therapist or therapy provider to transfer liability to the beneficiary, s/he must issue a valid ABN, Form CMS -R-131.  For more information, see the Therapy Services webpage at:  https://www.cms.gov/Medicare/Billing/TherapyServices/index.html  for the Advance Beneficiary Notice of Noncoverage (ABN) Frequently Asked Questions (FAQ) document that was posted to reflect the changes of the Bipartisan Budget Act of 2018. Please find the document titled: August 2018 ABN FAQs in the Downloads section on this webpage.    C.  Rehabilitative Therapy  Rehabilitative therapy includes services designed to address recovery or improvement in function and, when possible, restoration to a previous level of health and well-being.  Therefore, evaluation, re-evaluation and assessment documented in the Progress Report should describe objective measurements which, when compared, show improvements in function, decrease in severity or rationalization for an optimistic outlook to justify continued treatment.  Improvement is evidenced by successive objective measurements whenever possible (see objective measurement and other instruments for evaluation in the 220.3.C of this chapter).  If an individuals expected rehabilitation potential is insignificant in relation to the extent and duration of therapy services required to achieve such potential, rehabilitative therapy is not reasonable and necessary.   Rehabilitative therapy services are skilled procedures that may include but are not limited to:   Evaluations and reevaluations;    Establishment of treatment goals specific to the patients disability or dysfunction and designed to specifically address each problem identified in the evaluation;    Design of a plan of care addressing the patients disorder, including establishment of procedures to obtain goals, determining the frequency and intensity of treatment;   Continued assessment and analysis during implementation of the services at regular intervals;    Instruction leading to establishment of compensatory skills;    Selection of devices to replace or augment a function (e.g., for use as an alternative communication system and short -term training on use of the device or system); and    Training of patient and family to augment rehabilitative treatment.  Training of staff and family should be ongoing throughout treatment and instructions modified intermittently as the patients status changes.   Rehabilitative therapy requires the skills of a therapist to safely and effectively furnish a recognized therapy service whose goal is improvement of an impairment or functional limitation.  (See definition of therapist in section 220.A of this chapter.)  Services that can be safely and effectively furnished by nonskilled personnel or by PTAs or OTAs without the supervision of therapists are not rehabilitative therapy services.   Rehabilitative therapy may be needed, and improvement in a patients condition may occur, even when a chronic, progressive, degenerative, or terminal condition exists.  For example, a terminally ill patient may begin to exhibit self -care, mobility, and/or safety dependence requiring skilled therapy services.  The fact that full or partial recovery is not possible does not necessarily mean that skilled therapy is not needed to improve the patients condition or to maximize his/her functional abilities.  The deciding factors are always whether the services are considered reasonable, effective treatments for the patients condition and require the skills of a therapist, or whether they can be safely and effectively carried out by nonskilled personnel.  Rehabilitative therapy is not required to effect improvement or restoration of function when a patient suffers a transient and easily reversible loss or reduction of function (e.g., temporary and generalized weakness, which may follow a brief period of bed rest following surgery) that could reasonably be expected to improve spontaneously as the patient gradually resumes normal activities.  Therapy furnished in such situations is not considered reasonable and necessary for the treatment of the individuals illness or injury and the services are not covered.  If at any point in the treatment of an illness it is determined that the treatment is not rehabilitative, the services will no longer be considered reasonable and necessary under this section.  (See Section 220.2 D for additional covered therapy benefits under maintenance programs).  Services that are not reasonable or necessary are excluded from coverage under 1862(a)(1)(A) of the Act.   D.  Maintenance Programs   Skilled therapy services that do not meet the criteria for rehabilitative therapy may be covered in certain circumstances as maintenance therapy under a maintenance program.  The goals of a maintenance program would be, for example, to maintain functional status or to prevent or slow further deterioration in function.  Coverage for skilled therapy services related to a reasonable and necessary maintenance program is available in the following circumstances:   Establishment or design of maintenance programs.   If the specialized skill, knowledge and judgment of a qualified therapist are required to establish or design a maintenance program to maintain the patients current condition or to prevent or slow further deterioration, the establishment or design of a maintenance program by a qualified therapist is covered.  If skilled therapy services by a qualified therapist are needed to instruct the patient or appropriate caregiver regarding the maintenance program, su ch instruction is covered.  If skilled therapy services are needed for periodic reevaluations or reassessments of the maintenance program, such periodic reevaluations or reassessments are covered.    Delivery of maintenance programs.   Once a maintenance program is established, coverage of therapy services to carry out a maintenance program turns on the beneficiarys need for skilled care.  A maintenance program can generally be performed by the beneficiary alone or with the assistance of a family member, caregiver or unskilled personnel.  In such situations, coverage is not provided.  However, skilled therapy services are covered when an individualized assessment of the patients clinical condition demo nstrates that the specialized judgment, knowledge, and skills of a qualified therapist are necessary for the performance of safe and effective services in a maintenance program.  Such skilled care is necessary for the performance of a safe and effective maintenance program only when (a) the therapy procedures required to maintain the patients current function or to prevent or slow further deterioration are of such complexity and sophistication that the skills of a qualified therapist are required to furnish the therapy procedure or (b) the particular patients special medical complications require the skills of a qualified therapist to furnish a therapy service required to maintain the patients current function or to prevent or slow further deterioration, even if the skills of a therapist are not ordinarily needed to perform such therapy proced ures.  Unlike coverage for rehabilitation therapy, coverage of therapy services to carry out a maintenance program does not depend on the presence or absence of the patients potential for improvement from the therapy.   The deciding factors are always whether the services are considered reasonable, effective treatments for the patients condition and require the skills of a therapist, or whether they can be safely and effectively carried out by nonskilled personnel or caregivers.   The examples that follow are intended to provide illustrations of how coverage determinations are made.  These examples are not intended to include all possible situations in which coverage is provided or all reasons for denying coverage.  Rather they are intended only to show how to analyze the coverage issue.   Example #1 reflects a typical outpatient scenario in which a patient has been receiving ongoing therapy under a physical therapy plan of care and the physical therapist begins the establishment of the maintenance program prior to the patients anticipated discharge date.   EXAMPLE:   A patient with Parkinsons disease is nearing the end of a rehabilitative physical therapy program and requires the services of a therapist during the last week(s) of treatment to determine what type of exercises will contribute the most to maintain function or to prevent or slow further deterioration of the patients present functional level following cessation of treatment.  In such situations, the establishment of a maintenance program appropriate to the capacity and tolerance of the patient by the qualified therapist, the instruction of the patient or family members in carrying out the program, and such reassessments and/or reevaluations as may be required may constitute covered therapy because of the need for the skills of a qualified therapis t.  Example #2 is an outpatient scenario in which a patient who has not been receiving ongoing therapy under a therapy plan of care needs a maintenance plan.   EXAMPLE:   A patient with multiple sclerosis needs a maintenance program to slow or prevent deterioration in communication ability caused by the medical condition.  Therapy services from a qualified speech -language pathologist may be covered to establish a maintena nce program even though the patients current medical condition does not yet justify the need for individual skilled therapy sessions.  Evaluation, establishment of the program, and training the family or support personnel may require the skills of  a therapist and would be covered.  NOTE:   In this example, the skills of a therapist are not required to actually carry out the maintenance program services and, as a result, are not covered.   Example #3 describes a scenario where the skilled services of a therapist would be necessary to actually carry out the maintenance program services.   EXAMPLE:   Where there is an unhealed, unstable fracture that requires regular exercise to maintain function until the fracture heals, the skills of a therapist may be needed to ensure that the fractured extremity is maintained in proper position and alignment during range of motion exercises.  In this case, since the skills of a therapist may be required to safely carry out the maintenance program given this particular patients special medical complications, therapy services would be covered.   Example #4 describes another scenario where the skilled services of a therapist are needed to actually carry out the maintenance program services.   EXAMPLE:   A patient with a long history of Multiple Sclerosis has difficulties transferring in and out of the wheelchair and maintaining range of motion (ROM) of the lower extremities (LEs) due to increased spasticity muscle tone since the most recent exacerbation  episode of her Multiple Sclerosis.  The beneficiary is unable to walk but is independent with the use of her wheelchair.  The beneficiary needs to be able to safely transfer in and out of her wheelchair by herself or with the assistance of a famil y member or other caregiver(s).  After an individualized assessment by the physical therapist, and given the patients overall medical and physical condition, the skills of the physical therapist are required to instruct the patient and/or caregivers in pr oper techniques of wheelchair transfers and LE stretches due to the special medical complications from the progression of Multiple Sclerosis.  When the physical therapist determines that the patient can carry out the transfers and stretching activities safely and effectively, either alone or with the assistance of the caregivers, the skills of the physical therapist are no longer necessary to furnish the maintenance therapy; and, the patient is discharged from PT.   Example #5 describes a scenario where a patient on a maintenance program needs intermittent review and possibly a new or revised maintenance program.  EXAMPLE:   A patient who has a progressive degenerative disease is performing the activities in a maintenance program established by a therapist with the assistance of family members.  The program needs to be re- evaluated to determine whether assistive equipment is  needed and to establish a new or revised maintenance program to maintain function or to prevent or slow further deterioration.  Intermittent re -evaluation of the maintenance program would generally be covered as this is a service that requires the skills of a therapist.  Should the therapist conducting the re-evaluation determine that the program needs to be revised, these services would generally be covered.