This case is before the Medicare Appeals Council on the appellant's request for review of the decision issued by the Administrative Law Judge ("ALJ") on September 28, 2001. The Medicare Appeals Council grants the request for review under the provisions of 42 C.F.R. § 405.724 and 20 C.F.R. § 404.970, incorporated by reference in 42 C.F.R. § 405.724, because there is new and material evidence. The Council adopts the ALJ's statement of the facts. The Council does not adopt his findings or conclusions.

The beneficiary received two nursing visits and nine home health aide visits from July 1, 1999 to July 31, 1999. The fiscal intermediary denied coverage of these services because the beneficiary did not need skilled nursing care. On appeal by the Division of Medical Assistance of the Commonwealth of Massachusetts, the ALJ found that the beneficiary was homebound, the beneficiary needed skilled nursing care in the form of observation, and the services received were medically reasonable and necessary.

The appellant, the treating home health agency, requested review of the ALJ's decision through its representative, William A. Dombi of the Center for Health Care Law. In its request, the appellant asserted that the beneficiary did not need or receive skilled care. Specifically, the treating home health agency noted that observation of a changing condition is only covered under the regulations at 42 C.F.R. § 409.33(a)(2) until the patient's condition is stabilized. Additional evidence was submitted concerning the beneficiary's plan of care and treatment from April 28, 1999, through October 28, 1999, to substantiate the assertion that the beneficiary's condition was essentially stable and unchanging. Alternatively, if the care was skilled the appellant argued that remand was appropriate to recalculate the number of aide visits in the period, inasmuch as each visit billed lasted eight hours. The request for review and attached documents are entered into the record as Exhibit MAC-1. The Council notes that the appellant is a party to the appeal and may request review pursuant to 42 C.F.R. § 405.704(c) and 20 C.F.R. § 404.967.

Medicare regulations provide that, for coverage of home health care, the beneficiary require and receive intermittent skilled nursing care. 42 C.F.R. § 409.42(b)(3). A service is skilled if it is "so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel." 42 C.F.R. § 409.32(a). The regulations provide examples of specific services that qualify as skilled nursing or skilled rehabilitation services because of their inherent complexity. See 42 C.F.R. §§ 409.33(b), 409.33(c). Section 409.33(a) provides additional examples of services that can qualify as either skilled nursing or rehabilitation services. These services include:

• Overall management and evaluation of the patient's care plan;

•Observation and assessment of the patient's changing condition; and

•Patient education services.

Finally, 42 C.F.R. § 409.32(b) provides that a condition that does not ordinarily require skilled services may require them under certain circumstances because of special medical complications. Under those circumstances, a service that is usually non-skilled may be considered skilled because it must be performed or supervised by skilled nursing or rehabilitation personnel.

The beneficiary in this case had been receiving home health care since September 1, 1995, nearly two years before the period of service at issue. The medical evidence the ALJ considered consisted of two skilled nursing visit notes from July 1999 (Exh. 12), the plan of care form for June 28, 1999, through August 28, 1999 (Exh. 11), and a physician statement asserting that skilled care was needed (Exh. 14). There was no evidence in the ALJ hearing record of the beneficiary's condition, or the services provided, before or after the period and plan of care at issue.

During the period at issue, the beneficiary's principal diagnosis was hemiparesis with head injury. The plan of care ordered skilled nursing two to four times a month to assess safety, mental status, skin integrity, and elimination, and to watch for any complications from immobility. Additional evidence submitted with the request for review includes the plans of treatment for a six month period from April 1999 through October 1999, and skilled nursing notes from June 2, 1999, through September 15, 1999.

Considering the beneficiary's longitudinal course over a period of time, the Council finds that, according to the evidence in the record, the beneficiary did not need or receive skilled observation and assessment for a changing condition. The two nursing notes for July 1999 in the record reflect that the nurses' visits were routine and did not vary significantly from visits in June, August, or September 1999. They indicate that the beneficiary's vital signs and elimination functions were within normal limits. His skin integrity was intact. A previous scrotal infection was well-healed by June 2, 1999. There is no evidence of a risk of significant changes in the beneficiary's condition for which observation would have been necessary. There is also no evidence of medication changes during the period. The Council further notes that the plans of care for the period prior and subsequent to July, 1999, did not differ from the plan for the period at issue (Exh. MAC-1, pp. 6, 9).

The record as a whole reflects that the beneficiary's need was for assistance with his activities of daily living, not skilled nursing services. They do not indicate that the beneficiary's condition necessitated the need for overall management and evaluation of the care plan. Further, there is no indication in the record of a reasonable potential for complications, or that the beneficiary's condition or treatment regimen was unstable, requiring continued observation and assessment by a skilled nurse. Finally, we note that supervisory visits by a nurse to review how the home health aide is attending to the personal needs of the patient is not chargeable as a skilled visit. Home Health Agency Manual §218.3.

In reaching the above conclusions, we have considered the statement from R. D., M.D. (Exh. 14). This statement does little more than repeat the orders on the plan of care and offer the opinion that this care was skilled under the regulatory criteria. Centers for Medicare & Medicaid Services (CMS) Ruling 93-1 provides that no presumptive weight should be given to the treating physician's opinion that skilled nursing services are necessary in an inpatient setting. ⁽¹⁾ Those same criteria are applied to determine home health coverage. See 42 C.F.R. §§ 409.42(c)(1) and 409.44(b). Under the ruling, a physician's opinion is evaluated in the context of the complete administrative record, and coverage decisions are made based on objective medical information about the patient's condition and the services received. In this case, as detailed above, the objective medical record does not demonstrate that skilled services were needed or provided. The treating home health agency, who rendered the services, also found that no skilled services had been needed beginning March 28, 1997 (Exh. 1).

Accordingly, the Council finds that the nursing visits during the period at issue were custodial rather than skilled under section 1862(a)(1) and (9) of the Act; therefore, those visits are not covered by Medicare. Consequently, the home health aide visits are not covered. 42 C.F.R. § 409.45. Further, we find that the beneficiary is liable for the non-covered services under section 1879 of the Act. The beneficiary received and signed a valid notice of non-coverage from the Home Health Agency on March 28, 1997 (Exh. 1).

Because, we find the care non-covered, we do not reach a decision on the alternative argument that four home health aide visits occurred over an eight hour shift. We note, however, that the agency billed for only one visit per day. See Home Health Agency Manual 475.2, FL 46 (each visit must be reported as a separate line item). Further, visit notes (Exh. 12) and the bill (Exh. 2 (28 units of 15-minute increments billed per day)) indicate that the aide was only present for seven hours each day, not eight. The detailed daily log of activities in each seven hour shift also suggests that one a.m. visit and one p.m. visit each day would have been sufficient to render substantially all Medicare covered home health aide activities. See 42 C.F.R. §§ 409.45(b) and 409.48(c)

DECISION

It is the decision of the Medicare Appeals Council that the two nursing visits and nine home health aide visits to the beneficiary between July 1, 1999 and July 31, 1999, are not covered by Medicare. The beneficiary is liable for the cost of these services under 1879 of the Act. The decision of the ALJ is reversed.

November 20, 2003

Clausen Krzywicki
Administrative Appeals Judge

Susan Wiley
Administrative Appeals Judge

1. CMS Rulings are statements of policy and interpretation published under the authority of the Administrator, and are by regulation binding on all CMS components and ALJs (42 C.F.R. § 401.108(c)).