Jimmo v. Sebelius, the Improvement Standard Case FAQs

Frequently Asked Questions about the Jimmo Settlement
  1. What Does the Jimmo Settlement Agreement Mean?A: The Jimmo agreement settles once and for all that Medicare coverage is available for skilled services to maintian an individual’s condition.  Under the maintenance coverage standard articulated in the Jimmo Settlement, the determining issue regarding Medicare coverage is whether the skilled services of a health care professional are needed, not whether the Medicare beneficiary will “improve.” Pursuant to Jimmo, medically necessary nursing and therapy services, provided by or under the supervision of skilled personnel, are coverable by Medicare if the services are needed to maintain the individual’s  conditon, or prevent or slow their decline.
  2. Can the Jimmo Settlement Agreement help now?A:  Yes. The Settlement Agreement standards for Medicare coverage of skilled maintenance services apply now.  In fact, the government insists that it is only clarifying what has always been the Medicare coverage standard and that the Settlement does not change Medicare laws or regulations. The law never suported the requirement that people improve in order to get Medicare. Accordingly, health care providers should implement the maintenance standard now. Patients should discuss the Medicare maintenance standard with their providers to determine if it is applicable to them.

    Use the Center’s Self-Help Packets to help understand proper coverage rules and contest a Medicare denial for outpatient, home health, or skilled nursing facility care. Include a copy of the Settlement Agreement, key pages and sections of the Agreement are highlighted in yellow in the version on our website.

    Explain that the Settlement confirms, and the government agreed, that skilled services are covered when they are required to maintain a patient’s condition, or prevent further deterioration. Providers and Medicare decision-makers should be pushed to change their approach based on the Settlement – now.

    When fully implemented, the Settlement Agreement will result in new manual provisions explicitly covering maintenance nursing and therapy, and formal education of adjudicators and providers. But there is no reason not to make the argument now. Perhaps some decision-makers can be educated before the CMS’s education campaign begins – probably beginning in the summer of 2013. If denials persist, people will be entitled either to re-review later on in the Settlement process or a higher level of review in the regular Medicare appeals process.

  3. Has CMS made any public statement regarding the current application of the Jimmo settlement?

    A. CMS recently issued a fact sheet outlining the settlement in Jimmo v. Sebelius, including their next steps.  Read it HERE.

    In addition, on January 28. 2013, a spokesman for the agency told the Congressional Quarterly, “we are working to implement the terms of the settlement and ensure that beneficiaries have access to the full range of services that they are entitled to under the law. The settlement will clarify existing policy that claims should not be denied solely based on a rule-of-thumb determination that a beneficiary’s condition is not improving.”

    [CMS spokesman Brian Cook in an email message to Congressional Quarterly]

    Also, from the Department of Health and Human Services (HHS):
    “Under this settlement, Medicare policy will be clarified to ensure that claims from providers are reimbursed consistently and appropriately and not denied solely based on a rule-of-thumb determination that a beneficiary’s condition is not improving,” said Fabien Levy, a spokesman for the U. S. Department of Health and Human Services, which includes the Medicare program. (as quoted in The New York Times at: http://newoldage.blogs.nytimes.com/2013/02/04/therapy-plateau-no-longer-ends-coverage/)

  4. Does the Settlement apply to both Medicare Part A and Part B? 

    A: Yes.  The Settlement applies to both Medicare Part A and B.  In fact, the Agreement specifically covers outpatient physical therapy, occupational therapy and speech therapy, and long term home health care, which are covered by Part B.

  5. Does the Settlement apply to both Medicare managed care (Medicare Advantage) as well as to the traditional Medicare program? A: Yes.  The Settlement applies equally to Medicare Advantage as to the traditional Medicare program.  By law coverage in Medicare Advantage plans must be at least equal to that under traditional Medicare.
  6. Does the Jimmo Settlement Agreement only apply to people with certain diseases, diagnoses, or conditions?A:  No.  The Settlement is not limited to particular conditions or diseases. It applies to anyone who requires silled services to maintain or slow deterioration regardless of the underlying illness, disability or injury.
  7. Does the Jimmo Settlement Agreement apply to services provided at home or as an outpatient, or only to nursing home coverage?A:  The Settlement Agreement applies to skilled maintenance services provided in all three care settings –  under Medicare home health, outpatient therapy and skilled nursing facility benefits.
  8. Will the Jimmo Settement allow people to get coverage for physical therapy at home?A: Yes. Physical therapy, speech and occupational therapies are covered service under the Medicare home health benefit. If the individual meets the other Medicare home health qualifying criteria, the Jimmo Settlement makes it clear that “maintenance therapy” can be covered under the home health benefit if a qualified therapist is required to ensure the care is safe and effective.
  9. Does the Jimmo Settlement Agreement add to the number of days Medicare will cover in a nursing home?A:  No.  The Medicare law provides for up to 100 days of coverage per benefit period. The Jimmo Settlement confirms that Medicare coverage is avaiable for skilled nursing and therapy that is needed to maintain a person’s condition  or slow deterioration, for  nursing home, home health, and outpatient therapy.  However, it does not add to the number of days of coverage.
  10. I qualify for continued maintenance therapy because of Jimmo, but what happens when I reach the therapy payment cap?

    A: You should  request an exception to the therapy cap.  Have your doctor order the continued therapy and state in writing that a skilled therapist continues to be required for you to maintain your condition or slow deterioration. This should be a basis for continued care above the cap, as it is to begin therapy.  For more information, see this issue brief on the therapy cap exceptions process.

  11. What if my skilled care already stopped because of the Improvement Standard and I am no longer receiving services?A: If skilled services stopped because of the Improvement Standard and your physician thinks the services are needed, ask your doctor to prescribe the skilled nursing or therapy again.  The doctor should explain in writing why skilled nursing or therapy is required:  How will you benefit?  Will the services help you maintain your current condition or prevent or slow deterioration?  The doctor should be as specific as possible in explaining why skilled care is needed given your unique medical condition.  You may want to show the Jimmo Settlement Agreement to the doctor and health care provider to make it clear that improvement is not required for Medicare coverage – and that coverage is available for skilled maintenance care.

    Remember that all other Medicare requirements must still be met.  For example, skilled therapy in a nursing facility could be re-prescribed, however the 3-day hospital stay that is required for coverage must also be met again.  The homebound requirement still applies for Medicare coverage of home health care, and the annual dollar cap applies for outpatient therapies.

  12. Is the Jimmo  Settlement Retroactive?A:   Yes.  The Settlement Agreement goes back to the date the case was filed, January 18, 2011. The Agreement establishes a process called “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). After the government completes the revision of its policy and guidelines, and educates Medicare decision-makers, individuals will be able to get a re-review of these claims.  The denial must have come from Medicare and must be for services that were actually received, but not paid for by Medicare.  The Medicare denial must have become final and non-appealable after January 18, 2011 and before the end of the educational campaign (expected to be by the end of 2013).  This means that claims must have been submitted to Medicare and denied, and the normal deadline for further appeal must have expired,  The beneficiary may have tried appealing the denial through the regular Medicare appeal system; it does not matter at which level the beneficiary stopped as long as the outcome is a denial and the deadline for further appeal has passed.

    CMS has posted a form for individuals to request a re-review of services denied under the Improvement Standard.

    Providers and Medicaid agencies are not eligible for re-review of claims under the Settlement Agreement.

  13. Will the Jimmo Settlement Agreement cost Medicare too much?A:   The Settlement only provides Medicare coverage for what the law has always required, and for which people pay into Medicare to receive. The skilled maitenance nursing and therapy that is at the heart of the Settlement is usually low-cost, low-tech care that will often prevent the individual from declining further and requiring more intense, more expensive care.  In addition to being the right and legal thing to do, ccovering services such as those included in the Settlement Agreement may actually be more cost-effective than failing to provide these services.

    In an October 24, 2012 editorial, “A Humane Medicare Rule Change,” the New York Times recognized the proposed Jimmo settlement as reversing an “irrational and unfair approach to medical services.” The Times also noted that significant cost savings could result from covering necessary services to maintain an individual’s condition. As The Times recornized, when people receive medically necessary nursing and therapy services that enable them to maintain their functioning or slow their decline, many are able to stay home and avoid expensive hospitalization and nursing home care.

    A recent study regarding a Veteran Administration (VA) care model makes this point. In the VA program primary care teams are provided to assist the highest cost patients with multiple chronic diseases in their homes. The program operates in more than 250 locations, has an average daily census of more than 27,000 patients and has shown savings where costs are the highest of 24%. It has reduced hospitalizations by over 60% and has reduced nursing home use by over 80%. Many similar programs show savings on the highest cost patients of 50% or more, while showing very high patient/caregiver satisfaction.