DEPARTMENT OF HEALTH & HUMAN SERVICES

Health Care Financing Administration
Region X
M/S RX-40
2201 Sixth Avenue
Seattle, Washington 98121

March 2,1999

Sam P. Giordano, MBA, RRT
Executive Director
American Association for Respiratory Care
11030 Ables Lane
Dallas, Texas 75229-4593

Dear Mr. Giordano:

This is in response to your letter of January 20,1999, and your letter of the same date addressed to the Medicare Fiscal Intermediary in Washington State, Premera Blue Cross (PBC). In your letter you address the Local Medical Review Policy (LMRP) for Respiratory Therapy, adopted by PBC effective July 15, 1998. You have substantive concerns and procedural concerns. You contend that only a registered respiratory therapist can perform the services which are listed in the LMRP as routine nursing services, and that the LMRP was adopted without opportunity for public comment. We are responding to both these issues.

The LMRP on Respiratory Therapy Services

You are concerned that under the LMRP, claims for respiratory therapy provided in skilled nursing facilities are denied if the services could have been performed by a nurse and did not require the skill and expertise of a respiratory therapist. You are concerned that patient health and safety was not considered in establishing the LMRP, and that only a registered respiratory therapist can perform the services listed in the LMRP as nursing services.

Some of the services listed in the LMRP, are identified in national policy as routine nursing services, i.e., the LMRP includes "checking solely to determine if a patient is using oxygen and the amount of oxygen used is not considered the type of monitoring that requires specialized skills or training." This statement in the LMRP is taken directly out of the national HCFA policy contained in the Skilled Nursing Facility Manual (HIM-12) Section 310.1 O(C)(4)(c) which states:

Checking solely to determine if a patient is using oxygen and the amount of oxygen used is not considered the type of monitoring that requires specialized skills or training, and therefore is not u covered respiratory therapy service.

The LMRP also states that "coverage of respiratory therapy services cannot be recognized when performed on a mass basis with no distinction made as to the individual patient's actual condition and need for such services," and further states that "the intermediary will make a distinction between respiratory therapy services and routine nursing services." These statements are also taken directly out of the national HCFA policy contained in the Skilled Nursing Facility Manual (HIM-12) Section 310.10(C)(4) which states:

While there are many conditions for which respiratory therapy may be indicated, for Medicare purposes coverage of respiratory therapy services cannot be recognized when performed on a mass basis with no distinction made as to the individual patient's actual condition and need for such services. In addition. the intermediary should make a distinction between respiratory therapy services and routine nursing services. (Emphasis added.)

HCFA national policy requires the intermediary to make a distinction between respiratory therapy services and routine nursing services. The LMRP adopted by PBC carries out this national HCFA directive.

You state that the LMRP conflicts with HCFA's Resident Assessment Instrument Version 2.0, used by nursing homes to complete the Minimum Data Set (MDS). The RAI refers to a "trained nurse" as one with specific training in respiratory therapy. We do not believe these policies conflict. We agree that nurses ca e not qualified to provide respiratory therapy services without special training. Nurses do need special training to perform complex services for acute patients, i.e., the type of services which could also be performed by a respiratory therapist for the ventilator dependent patient, the patient with a tracheotomy, and the patient in acute respiratory distress.

We fully appreciate that respiratory therapy services do require the skill and expertise of either respiratory therapists, or nurses with specific training in respiratory therapy. For example, ventilator dependent patients, patients with tracheotomies, or patients in acute respiratory distress would require such specialized services. The services listed above as routine nursing services are not complex, and are not designed for the initial stages of acute care. They are services provided to chronic, stable patients. Often the respiratory therapist provides services in the initial, acute stage of care, and trains nursing staff to perform the repetitive services needed after a patient has stabilized.

We do not believe the intermediaryÕs position is in conflict with the positions taken in the articles attached to your letter. For example, the American Journal of Critical Care article refers to the need for nurses to obtain specialized training to care for ventilator patients.- We agree. The statement by the American Society of Anesthesiologists refers to the critical role played by respiratory therapists in 'the control of life support equipment in critically ill patients." We agree. The resolution of the American College of Chest Physicians, while reaffirming the role of respiratory therapists, affirms our position that other health care providers possess the necessary training and experience to deliver simple modalities of respiratory care.

Procedural Issues

We do not consider the LMRP to be a "significant change in respiratory therapy coverage policy" as stated in your letter. Medicare intermediaries have always had the responsibility to "make a distinction between respiratory therapy services and routine nursing services" as required by Skilled Nursing Facilitv Manual (HIM- 12) Section 310.10(C). As you know, Medicare formerly reimbursed skilled nursing facilities for nursing services as part of the facilities' routine costs. If Medicare had paid again for these same services as ancillary respiratory therapy costs, Medicare would have paid for the services two times: once under Part A as routine costs and again under Part B as ancillary costs.

You express concern that the intermediary considered the Declaration of Jann Robinson a "HCFA directive." Her declaration was not a formal HCFA directive it was a statement by a registered nurse who is a Health Insurance Specialist and a nursing consultant. We realize the intermediary referred to it as a "HCFA directive," however the intermediary's nurse also stated that she concurred with the statements expressed in the declaration. If you need further confirmations of the validity of these views, we suggest you consult the Washington State Nurses Association for their views on this issue.

LMRPs are developed in accordance with procedures specified in Intermediary Manual Section 391 1. LMRPs are a composite of statutory provisions, regulations, nationally published Medicare coverage policies, and local medical review policies. When an intermediary develops a LMRP, it solicits comments and recommendations from appropriate groups of professionals, applicable provider organizations, and carriers, PROs and other intermediaries in the Region. A 45-day comment period is provided for all interested groups to submit their comments and views to the intermediary. A new LMRP is not effective until at least 30 days after notice of the final LMRP. Notice can be via a special bulletin or provider newsletter.

In this case, PBC gave notice of the proposed LMRP on respiratory therapy on September 16, 1997, in an attachment to its Medicare Bulletin. On October 20, 1997, providers were reminded again in the Medicare Bulletin that the comment period would end on October 31, 1997. Although the intermediary expected to implement the policy on November 30, 1997, it did not publish the final LMRP until June 16, l 398, which delayed implementation until July 15,1998.

We regret that you did not participate in the review process, which was carried out to give all interested participants an opportunity to share their views with the intermediary. Your comments on this LMRP were submitted after the review period on the LMRP had expired. The intermediary, however, did address your comments in a letter to you December 16, 1998.

In summary, the intermediary is required by national HCFA policy to differentiate between routine nursing services and respiratory therapy services. We believe that the LMRP on respiratory therapy provides guidance on the difference between simple, non-complex services that are provided by nurses and the acute, complex services that are provided by respiratory therapists. Under that national policy, as stated in Intermediary Manual 3911.2(C), intermediaries do not automatically deny a claim based on the LMRP if additional documentation is submitted by the provider, and if the facts of an individual case support an exception to the LMRP.

Thank you for addressing your concerns to HCFA. If you have further questions please contact Jann Robinson of my staff at (206) 615-2397.

Sincerely,

Linda A. Ruiz
Regional Administrator

cc:
Thomas Hoyer, CO, HCFA
Senator Ted Stevens
Senator Frank Murkowski
Senator Gordon Smith
Senator Ron Wyden
Senator Patty Murray
Senator Slade Gorton
Evelyn McChesney, Asst. Regional Counsel, OGC
Janet Russell, Premera
Barbara Riley, Premera