Burlington, VT − Today, The Center for Medicare Advocacy and co-counsel from Vermont Legal Aid filed a class action lawsuit against Kathleen Sebelius, the Secretary of Health and Human Services, aimed at terminating the application of the Medicare "Improvement Standard," a policy and practice that wrongfully denies Medicare patients suffering from chronic conditions coverage and care. Jimmo, et al vs. Sebelius, 5:11-CV-17, (D. VT., January 18, 2011).

The lawsuit was filed in United States District Court in Burlington, Vermont on behalf of five individual plaintiffs from Vermont, Connecticut, Rhode Island, and Maine and five national organizational plaintiffs: the National Committee to Preserve Social Security and Medicare, the National Multiple Sclerosis Society, Parkinson's Action Network, Paralyzed Veterans of America, and the American Academy of Physical Medicine and Rehabilitation.

The suit was filed against the Secretary of Health and Human Services as the official responsible for implementing and enforcing the Medicare program. Medicare provides coverage for health care and services that are "reasonable and necessary for the diagnosis or treatment of illness or injury." The "Improvement Standard" is shorthand for Medicare coverage denials issued on the grounds that the individual's condition is stable, chronic, not improving, or that the services involved are for "maintenance only." The use of an Improvement Standard is not supported by Medicare law. Under the law and related regulations it is not necessary to improve in order to get coverage.

The Plaintiffs challenge the Secretary's continuing use of an Improvement Standard as a rule of thumb that operates as an additional and illegal condition of coverage, resulting in the termination, reduction, or denial of coverage for thousands of Medicare beneficiaries.

"Thousands of Medicare patients have been denied coverage for skilled services such as home health care, physical, occupational and speech therapies because their underlying condition will not improve," said Judith Stein, Founder and Executive Director of the Center for Medicare Advocacy, a group of the nation's leading legal advocates for the more than 46 million older and disabled Americans enrolled in Medicare. "The Improvement Standard is an illegal, harmful and unfair application of Medicare law," Stein continued.

"We must remove the obstacles that are preventing people who rely on Medicare from accessing the care they need," stated Michael Benvenuto, co-council from Vermont Legal Aid. "We need to eliminate this policy and practice to ensure Medicare patients receive fair access to the coverage and care that is promised under the law."

Nearly half (46%) of all Medicare beneficiaries have three or more chronic conditions, the majority of which need therapeutic care. The Improvement Standard's application unfairly targets paralyzed individuals, including veterans, people with Multiple Sclerosis, Alzheimer's Disease, Parkinson's Disease, and ALS, who need the care they are being denied.

"Following a hospital stay and three months in a rehabilitation facility in early 2010, I was released to home care. Although my doctors state that I need physical therapy, the home health agency denied me this care because, as they say, my wound is chronic and will never heal and therefore these services are not covered by Medicare," stated Mrs. Edith Masterman, a resident of Wilton, Maine and one of the individual plaintiffs in the case.

"We must terminate the misapplication of policy which is preventing people with MS and other chronic illnesses from receiving medically necessary care to help avert physical and cognitive deterioration or maintain optimal functioning," stated Dr. Nicholas LaRocca of the National Multiple Sclerosis Society. "This deterioration often leads to more intense, more expensive services, hospitalization or nursing care," he added.

"The lawsuit comes as a last resort," stated attorney Gill Deford, the Center for Medicare Advocacy's Director of Litigation. The Center for Medicare Advocacy, together with other agencies and several members of Congress, have urged the federal Centers for Medicare & Medicaid Services (CMS) to eliminate the application of the Improvement Standard. "While we thank CMS for their recent clarification of Medicare coverage for home health services – including physical therapy, occupational therapy and speech-language pathology services – the clarification does not undo conflicting policies and practices. We must move forward to ensure people do not suffer needlessly," Deford continued.

A judgment in favor of the lawsuit's plaintiffs would grant millions of Americans who suffer from chronic and debilitating conditions a fair chance to obtain the Medicare coverage for which they qualify and the health care treatments they need to remain as healthy and productive as possible. As those with chronic conditions account for more than 70% of all deaths in the United States, ending application of the Improvement Standard is a life or death issue for countless Americans.

For more information about the class-action lawsuit, or to learn more about the Improvement Standard or how to get involved in advocacy activities visit www.medicareadvocacy.org. 

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For press inquiries and interviews with the Center for Medicare Advocacy or partnering health advocacy groups, or for patient stories, please contact: Pattie Haubner: phaubner@douglasgould.com or call (914) 833-7093. _______________________________

The Center for Medicare Advocacy, Inc., established in 1986, is a national nonprofit, nonpartisan organization that provides education, advocacy and legal assistance to help older people and people with disabilities obtain fair access to Medicare and necessary health care. We focus on the needs of Medicare beneficiaries, people with chronic conditions, and those in need of long-term care. The organization is involved in writing, education, and advocacy activities of importance to Medicare beneficiaries nationwide. The Center is headquartered in Connecticut with offices in Washington, DC and offices throughout the country.