Improvement Standard and Jimmo v. Sebelius News

Federal Court Approves CMS Corrective Statement to Enforce Jimmo Settlement

Contents

  1. Skilled Maintenance Services Are Covered by Medicare
  2. Visual Timeline of the Improvement Standard
  3. Why the Jimmo Case Matters
  4. More Background on the Jimmo Case
  5. Practice Tips
  6. Articles & Updates

On February 16, 2017, the Jimmo v. Sebelius court approved a Corrective Statement to be used by the Centers for Medicare and Medicaid Services (CMS) to affirmatively disavow the use of an “Improvement Standard” for Medicare coverage. The government will use the statement as part of its Corrective Action Plan, which was ordered by the Court last month to remedy noncompliance with the Jimmo Settlement.

The court-approved CMS Corrective Statement follows:

The Centers for Medicare & Medicaid Services (CMS) reminds the Medicare community of the Jimmo Settlement Agreement (January 2014), which clarified that the Medicare program covers skilled nursing care and skilled therapy services under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met). Specifically, the Jimmo Settlement required manual revisions to restate a “maintenance coverage standard” for both skilled nursing and therapy services under these benefits:

Skilled nursing services would be covered where such skilled nursing services are necessary to maintain the patient’s current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided.

Skilled therapy services are covered when an individualized assessment of the patient’s clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist (“skilled care”) are necessary for the performance of a safe and effective maintenance program.  Such a maintenance program to maintain the patient’s current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program.

The Jimmo Settlement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve.  The Settlement is consistent with the Medicare program’s regulations governing maintenance nursing and therapy in skilled nursing facilities, home health services, and outpatient therapy (physical, occupational, and speech) and nursing and therapy in inpatient rehabilitation hospitals for beneficiaries who need the level of care that such hospitals provide.

Attorneys for the Jimmo plaintiffs are pleased that the statement emphasizes the availability of coverage for maintenance nursing and therapy when it is skilled. Many older adults and people with disabilities require skilled therapy or nursing to maintain current functioning or prevent deterioration.  This is particularly true for people with chronic and progressive conditions, such as Parkinson’s disease, multiple sclerosis, or ALS. Medicare beneficiaries and their advocates should point to the CMS Corrective Statement if confusion about the Improvement Standard among medical providers or Medicare decision-makers persists.

“The CMS Corrective Statement is intended to make it absolutely clear that Medicare coverage can be available for skilled therapy and nursing that is needed to maintain an individual’s condition or slow deterioration,” says Judith Stein, Executive Director of the Center for Medicare Advocacy and a counsel for the plaintiffs. “We are hopeful this will truly advance access to Medicare and necessary care for people with long-term and debilitating conditions.”

CMS will be publishing the Corrective Statement on a new webpage dedicated to Jimmo. The webpage will also include Frequently Asked Questions and Jimmo-related documents and resources. The Corrective Action Plan also includes additional training for Medicare contractors and adjudicators.  The Plan must be fully implemented by September 4, 2017.

Skilled Maintenance Services Are Covered by Medicare

The Center for Medicare Advocacy is pleased to announce that the Medicare Policy Manuals have been revised.

The revisions, pursuant to the Jimmo vs. Sebelius Settlement, clarify that improvement is not required to obtain Medicare coverage.  The revisions were published by the Centers for Medicare & Medicaid Services (CMS) on Friday December 6, 2013. They pertain to care in Inpatient Rehabilitation Facilities (IRF), Skilled Nursing Facilities (SNF), Home Health care (HH), and Outpatient Therapies (OPT).

The CMS Transmittal for the Medicare Manual revisions, with a link to the revisions themselves, is posted on the CMS website at http://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R179BP.pdf.  The CMS MLN Matters article is also available on the CMS site under “Downloads” at: http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/Downloads/MM8458.pdf

As CMS states in the Transmittal announcing the Jimmo Manual revisions:

No “Improvement Standard” is to be applied in determining Medicare coverage for maintenance claims that require skilled care. Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes (i.e., to prevent or slow a decline in condition). The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves. The manual revisions now being issued will serve to reflect and articulate this basic principle more clearly. [Emphasis in original.]

Per the Jimmo Settlement, CMS will now implement an Education Campaign to ensure that Medicare determinations for SNF, Home Health, and Outpatient Therapy turn on the need for skilled care – not on the ability of an individual to improve. For IRF patients, the Manual revisions and CMS Education Campaign clarify that coverage should never be denied because a patient cannot be expected to achieve complete independence in self-care or to return to his/her prior level of functioning.

Background

The Jimmo settlement was approved on January 24, 2013 after a fairness hearing, marking a critical step forward for thousands of beneficiaries nationwide. (See the Order Granting Final Approval).  The lawsuit was brought on behalf of a nationwide class of Medicare beneficiaries by six individual beneficiaries and seven national organizations representing people with chronic conditions, to challenge the use of the illegal Improvement Standard.

The proposed Jimmo settlement agreement[2] was originally filed in federal District Court on October 16, 2012. The plaintiffs joined with the named defendant, Secretary of Health and Human Services Kathleen Sebelius, in asking the federal judge to approve the settlement of the case. With only one written comment received, and no class members appearing at the fairness hearing to question the settlement, Chief Judge Christina Reiss granted the motion to approve the Settlement Agreement on the record, while retaining jurisdiction to enforce the agreement in the future, as requested by the parties.

With the settlement now officially approved, the Centers for Medicare & Medicaid Services (CMS) is tasked with revising its Medicare Benefit Policy Manual and numerous other policies, guidelines and instructions to ensure that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatient settings.  CMS must also develop and implement a nationwide education campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve.

It is important to note that the Settlement Agreement standards for Medicare coverage of skilled maintenance services apply now – while CMS works on policy revisions and its education campaign. The Center is hearing from beneficiaries who are still being denied Medicare coverage based on an Improvement Standard, but coverage should be available now for people who need skilled maintenance care and meet any other qualifying Medicare criteria. This is the law of the land – agreed to by the federal government and approved by the federal judge.  We encourage people to appeal should they be denied Medicare for skilled maintenance nursing or therapy because they are not improving.

Patients should discuss with their health care providers the Medicare maintenance standard and whether it is applicable to them.  Health care providers should apply the maintenance standard and provide medically necessary nursing services or therapy services, or both, to patients who need them to maintain their function, or prevent or slow their decline.  Under the maintenance standard articulated in the settlement, the important issue is whether the skilled services of a health care professional are needed, not whether the Medicare beneficiary will “improve.”

CMS has issued a Fact Sheet outlining the Jimmo v. Sebelius. settlement.  Use this fact sheet now as evidence that skilled maintenance services are coverable for skilled nursing facility care, outpatient therapy, and home health care. The Center for Medicare Advocacy has self-help materials to help pursue Medicare coverage, including for skilled maintenance nursing and therapy.

For answers to many common questions about the Settlement, see our Frequently Asked Questions.

What Can Beneficiaries Do If They Were Denied Care Under the Improvement Standard?

The Jimmo settlement also establishes a process of “re-review” for Medicare beneficiaries who received a denial of skilled nursing facility care, home health care, or out-patient therapy services (physical therapy, occupational therapy, or speech therapy) that became final and non-appealable after January 18, 2011 because of the Improvement Standard.  You can access a request for re-review form here.  CMS discusses and links to the form here.

For people needing assistance with appeals, the Center for Medicare Advocacy has self-help materials available. This information can help individuals understand proper coverage rules and learn how to contest Medicare denials for outpatient, home health, or skilled nursing facility care.

Visual Timeline of the Improvement Standard

Why the Jimmo Case Matters

Under the Jimmo Settlement Agreement, the Center for Medicare Advocacy and Vermont Legal Aid will be monitoring compliance with the terms of the settlement.  We want to hear from you. Please keep us informed of your experiences, both positive and negative. Share Your Improvement Standard Story!

More Background on the Jimmo Case

Practice Tips

Articles & Updates