Análisis

The ALJ noted that the reason given for inability to self-inject is “forgetfulness related to old age and poor vision,” which the OASIS indicates that the beneficiary has “normal vision” and “no memory deficits or problems with her memory.” ALJ Decision in 1-275867562, at 11. The ALJ concludes that the “documentation and oral testimony provide no explanation of these

inconsistencies,” and therefore that the “written record including the physician’s orders for home health and oral testimony of the appellant” do not show that the home health services were reasonable and necessary. Id.

The recertification OASIS contains the entries cited by the ALJ, identifies no functional limitations, and states only that the “patient not comfortable in doing self-injection of insulin.” Case File in 1-275867562, Ex. 9, at 2, 7, 8, 12. The nursing notes all check the item for “forgetful” and that the patient “needs continuous instructions.” Case File in 1-275867562, Ex. 16 passim. The record is not sufficient to establish that the patient was unable, mentally or physically, to self-inject, as opposed to simply unwilling to learn. The manual provisions quoted earlier make clear that a caregiver may decline to undertake injections if unable or unwilling to do so, a

beneficiary is entitled to coverage for insulin injections only if unable to self-inject.

We therefore adopt the ALJ decision. 3. Other skilled nursing services12

12 _{For beneficiaries for whom PT services were at issue along with SN}

services, we have included our discussion of the PT services in this section for simplicity. More information on the standards governing coverage of PT services is given in the next section of this decision which addresses beneficiaries for whom PT services were the primary home health services. Also, where other home health services (such as social worker visits or home health aides) were denied only because the primary qualifying services was denied, where we reverse the denial of the primary qualifying service, we also reverse the denial of the dependent service without further discussion.

In the following cases, the ALJ denied SN services (and

sometimes other home health services as well) on the grounds that they were not reasonable and necessary. Generally, the need for a skilled nurse to provide a service may be evaluated based on the “inherent complexity of the service, the condition of the patient and accepted standards of medical and nursing practice.” MBPM, Ch. 7, § 40.1.1. In reviewing these questions, CMS has provided guidance that –

The determination of whether the services are reasonable and necessary should be made in consideration that a

physician has determined that the services ordered are

reasonable and necessary. The services must, therefore, be viewed from the perspective of the condition of the patient when the services were ordered and what was, at that time, reasonably expected to be appropriate treatment for the illness or injury throughout the certification period.

MBPM, Ch. 7, § 40.1.1.

Overall, we find that the ALJ failed to conduct the kind of individualized inquiry called for by the applicable regulations and manual provisions. In most cases, the ALJ recited stock phrases to explain his denials without providing any analysis of why they applied to the specific situation under review. The few details which he mentions are frequently drawn verbatim from the decisions issued in the prior levels of appeals without

citation to the exhibits before him or explanation of why contrary evidence was discounted. It has, therefore, been necessary for us to conduct a detailed review and analysis in most cases to determine if the clinical record before documents that the services ordered were reasonable and necessary in light of the patient’s individual condition and history.

In addition, the phrases recited by the ALJ often misstate the applicable standards for when skilled services are reasonable and necessary. For example, the ALJ repeatedly recites that there was “no change in the beneficiary’s overall condition, functional status, or plan of care” during the relevant period, or that the services were merely “general assessments, ongoing observation, and repetitive teaching to a medically stable

patient.” ALJ Decision in 1-275-934577, at 11. This distorts the applicable guidance on when skilled nursing is needed to assess and monitor a patient for possible changes. CMS explains the standards as follows:

Observation and assessment of the patient's condition by a nurse are reasonable and necessary skilled services when the likelihood of change in a patient's condition requires skilled nursing personnel to identify and evaluate the patient's need for possible modification of treatment or initiation of additional medical procedures until the patient's treatment regimen is essentially stabilized. Where a patient was admitted to home health care for skilled observation because there was a reasonable

potential of a complication or further acute episode, but did not develop a further acute episode or complication, the skilled observation services are still covered for three weeks or so long as there remains a reasonable

potential for such a complication or further acute episode. Information from the patient's medical history may support the likelihood of a future complication or acute episode and, therefore, may justify the need for continued skilled observation and assessment beyond 3-week period. Moreover, such indications as abnormal/fluctuating vital signs,

weight changes, edema, symptoms of drug toxicity,

abnormal/fluctuating lab values, and respiratory changes on auscultation may justify skilled observation and

assessment. . . . However, observation and assessment by a nurse is not reasonable and necessary to the treatment of the illness or injury where these indications are part of a longstanding pattern of the patient's condition, and there is no attempt to change the treatment to resolve them. MBPM, Ch. 7, § 40.1.2.1.