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In a decision released February 2, 2017, the federal judge overseeing the Settlement Agreement in the Medicare “Improvement Standard” case (Jimmo v. Burwell) ordered the Secretary of Health & Human Services to carry out a Corrective Action Plan to remedy the Department’s noncompliance with the Settlement.  In August, 2016, Chief Judge Christina Reiss, of the District of Vermont, held that the Secretary had not accurately implemented the Jimmo Settlement’s required Educational Campaign. The Judge ruled that the Secretary failed to explain that a consideration of the need for skilled care, not the potential for improvement, should govern Medicare coverage determinations – for skilled nursing facility, home health, and outpatient therapy. Medicare covers skilled nursing and therapy to maintain or slow decline as well as to improve the patient’s condition. Following up on her August decision, the judge has ruled on the content of a Corrective Action Plan.

The judge ruled that the Corrective Action Plan will include a new CMS webpage dedicated to Jimmo, a published Corrective Statement disavowing the improvement standard, a posting of Frequently Asked Questions (FAQs), and new training for contractors making coverage decisions.  In addition, and significantly, the Court largely adopted the Corrective Statement drafted by plaintiffs, and ordered the Secretary to conduct a new National Call to explain the correct policy.

Judith Stein, Executive Director of the Center for Medicare Advocacy, one of two public interest law firms representing the plaintiffs, said that the Corrective Statement is critical: “With the imprimatur of CMS on the Statement, which specifically notes that the Jimmo Settlement represents a ‘change in practice,’ Medicare adjudicators and providers should have no doubt about what the correct coverage policy is. This should open doors to critically important care for people with long-term, debilitating and chronic conditions.”  The judge’s Order requires the Statement to appear “on the Jimmo webpage, in the FAQs, and in the written materials and oral statements the Secretary has agreed to disseminate.”

Another of plaintiffs’ attorneys, Michael Benvenuto of Vermont Legal Aid, viewed the new National Call as a particularly important component of relief: “The original National Call was riddled with misstatements and confusion.  Requiring a new Call should clarify that a maintenance standard, not an improvement standard, controls.”

Despite the education provided by CMS in 2013, many Medicare decision-makers and providers have continued to require improvement as a condition of continued coverage.  Gill Deford, Litigation Director at the Center for Medicare Advocacy and lead counsel for plaintiffs, observed: “I hope this latest Order finally puts the Improvement Standard to rest.  We thought the Settlement Agreement would accomplish that goal, but this Order should finally ensure that elderly and disabled Medicare beneficiaries receive the health care and Medicare coverage that they have always been entitled to.”

Cyndi Zagieboylo, CEO of the National Multiple Sclerosis Society, a plaintiff in Jimmo, underscored the importance of the case and the new Order, “Rehabilitation therapy is essential for people with multiple sclerosis to maintain the flexibility, strength, and independence they need to avoid falls or other injuries, and to live their best lives.  More and better education about Medicare coverage of these benefits will help ensure that beneficiaries with MS are never again told they cannot get all the rehabilitation therapy they need as their doctors prescribe.”

The Secretary is required to certify compliance with the order by September 4, 2017.

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The Center for Medicare Advocacy, Inc., established in 1986, is a national nonprofit, nonpartisan law organization that provides education, advocacy and legal assistance to help older people and people with disabilities obtain fair access to Medicare and quality health care. The Center is headquartered in Connecticut and Washington, DC with offices throughout the country.

Vermont Legal Aid is a non-profit law firm established in 1968 to provide civil legal services for those living in poverty, with a disability, or over age 60. We also serve anyone who is discriminated against in housing decisions and all who face challenges related to health care insurance or services.

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