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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.

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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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