HEARING - U.S. Senate Special Committee on Aging

140
10,938 New Development.
492 S-86
cable regulations and the relevant portions of
IIIM-13 clearly contemplate that each patient
will receive an individlualized assessment of his
need for daily skilled physical therapy ha.srd on
the facts and circumstances of his particular
case.
For example, the regulations authorize coverage
for physical therapy "exercises or activities
which, because of the type of exercises employed
or the crondition of the patient, must he per.
lormed by or under the supervision of a qualified
physical therapist or occupational therapist
to ensure the safety of the patient and the
effectiveness of the treatment." 42 C.F.R.
§409.33(cX)2) (emphasis added). The regula.
tions similarly provide that maintenance physical
therapy will quatliy for Medicare coverage
-when the specialized knowledge and judgment
of a qualified therapist is required to design and
establish a maintenance program based on an
initial evaluation and periodic res-sessment of
tde patient's needs, and consistent with the
pAtients capacity and tolerance." 42 C.F.R.
§409.33(cX5) (emphasis added). The regulations
likewise allow coverage for "[riange of
motion exercises which are part of the active
treatment of a specific disease state which has
resulted in a lss of, or restriction of, mobility
(as evidenced by a therapist's notes showing the
degree of motion lest and the degree to be
restored)" 42 CF.R. *409.33(cX4) (emphasis
added).
It is clearly contrary to such regulations for
an intermediary to deny benefits on the basis of
(Footnote Continued)
roevateation, u may be required muld r-retittr phyic
."uld net be cosaiTered ressonabie and neersetry. Reptitkua
eacreises ts improve pit or maintlin trenthi and
Whenr a ptient bau beets under a restorative Ptrysicat enduranc nd sstituive "aking. s=h as pniAdd in sap-
theapy pmngo, the physical therapist atud rostuarty be
port tsr feeble or Utable patients., re appr iely p-
reevahfatln the croditi and -di-atil' any earrcie vrosided
by aeppeetire peramnol. eg.. aides or narsing
personnel. arid do not require the atiltl of a quaifired ptysigram
in ikh the patient is egaged. Consequetly, When
is h trmne that no hirtler restoration is Psesibte. the
at1 theraopst.
pstai thapit shod hs- already designed thr essint.e
tasnen pnm reqeired iusd instructed the Pitient. upprtivr,
perseesf tor ramily anember here physical 4. Riange of Miion TeaIs Only the qualified physics
therpy hi bt funaishd oan - utpti-nt bats) in the therapist nay perfrm range of motOn teu and, terer-,
earytni; orit dt thr f em. Therefor, where a maint such tes mosltd emotiotte phpysie therspy.
rnee prbram n na nt bestis he athil after the tior tise 5- Therapik EZerrt. - Therapeuttic esere which
physmCal theramn pr ra ha beend esapetr ii wuild not muit be performed by or under the sp-rnision of the
te gtdert o asna rd ray th xbe treatet a quatitied physIa terapist due either to the type at
he patienta ee abtion std oud itti eashaed torap boyerage eerrise tmplneyd or to the condition at the patent wold
wider 142 t&C. I l2957yiaXtll
monsritute pbysil therapy. Range of motion esertistr
C Aiwdicatli . at skatde The fritim ir- dithUasiai require the skills d .quatifrt physical therapst tonly wn
Ia teiur tihe apphiyk i at hie aheve geidetinr tn th they are part o the etire tretment af a specit diase
mawn gamato medaitina atnd praredoora. astiaird in thre whikh baa resoitit in a he. or restriction at moility (as
treatrrent at paticitt
eviidened by physical therpy sers ah the degree a
motion inst and te ,tnree o be restore.d) ett serh eor.
ties, either brinie rf their natere [mi the condition of the
2. Gait Tranintn Gait restitution a*nd training tarnished patint mai aonty her rnrnrd srty and tketiiy by or
a patient whese sinliy tar math baas been impiriedl by searaF uster ;th seprnision of a qautifiedt physirat therapist.
ttagei masenr. or siriett hrnaeeatity requires the rthts Cketallv. rangne d mntion eirehs hich are mst retaird no
dt a qu lilied tPhys ia therapit. H t rae. il gait rcaluati~ss the reete~ttion at a speific loss at sunction bt rather ate
and training canno resastorty bh otXetrd sr impro r related in the nmaintnan of fortiat tr a2) de n.t
atgnificantty the patient's ability to -ath. seth ri, requir tb thus1 of a quaifid physical thepist.
1 35,374
informal presumptions, or "rules ol thumb,"
that are applied across the hoard without regard
to the mcdical condition or thcrapeutic requirements
of the individual patinit. Cf. City of New
York, supra. 742 F.2d at 732 733 (enjoining
administrative practice of employing a presumption
in Social Security disability determinations
that was inconsistent with applicable
law).
This is not to say that all or even most of the
class members who were denied coverage for
physical therapy as a result of the
intermediaries' inflexible and arbitrary practices
ought to have received coverage. However,
the Secretary cannot permit his intermediaries
to use blanket rules not supported or authorized
by any applicable law or regulations to deny
what otherwise might be meritorious claims.
The various arguments offered by the Secretary
in support of the intermediaries' practices
are unpersuasive and unsupported by the record
of this case, In his Post-Trial Memorandum
(filed July 13, 19B4) at 20? & n 7 the Secretary
argues that physical1 therapy benefitsi are not
available for pattients in the "non-weight bea7ring"
stage of rehabilitation and for amputees
who have not yet received prostheses, because
such patients do not require daily thcratpy and
because Pars B of Medicare may provide coverage
for three days a week of therapy for patients
who have purchased this optional health insurance.
For one thing, the intermediaries' presumption
that such patients never require
skilled physical therapy on a daily basis is
09B6, Commerce Clearing Houset Inc.