Beneficiaries Across the Country Still Denied Needed Coverage Due to Illegal Use of Improvement Standard
March 1, 2016 – Today, Plaintiffs’ counsel, the Center for Medicare Advocacy and Vermont Legal Aid, filed a Motion for Resolution of Non-Compliance with the Settlement Agreement in the landmark case, Jimmo v. Sebelius. The filing comes after three years of urging the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation to end continued application of an “Improvement Standard” by Medicare providers, contractors and adjudicators to deny Medicare coverage for skilled maintenance nursing and therapy.
Jimmo was brought on behalf of a nationwide class of Medicare beneficiaries who were denied coverage and access to care because they did not show sufficient potential for “improvement.” This long-practiced standard contradicts Medicare law. The Jimmo Settlement leaves no doubt that under the law and related regulations and policies, it is not necessary to improve in order to obtain Medicare coverage for skilled services. Medicare is available for skilled nursing and therapy to maintain an individual's condition or slow deterioration. If truly implemented and enforced, the settlement should improve access to skilled maintenance nursing and therapy for thousands of older adults and people with disabilities whose Medicare coverage for skilled care is denied or terminated because their conditions are “chronic,” “not improving,” “plateaued” or “stable.”
Unfortunately, providers and contractors continue to illegally deny Medicare coverage and care based on an “Improvement Standard,” resulting in beneficiaries nationwide failing to obtain needed skilled nursing and therapy coverage. This continued loss of skilled care based on an improvement requirement is occurring despite the assertion by CMS that it has completed the education campaign required by the Settlement. That campaign, however, has clearly failed to educate key components of the provider community and Medicare decision-making system.
“Three years after the Jimmo Settlement we are still hearing daily about providers who never heard of the case and patients who can’t get necessary care based on an Improvement Standard,” said Judith Stein, co-counsel for plaintiffs and Executive Director of the Center for Medicare Advocacy. “For example, in July one of our clients received a notice denying Medicare and cutting off therapy ‘because [of] failure to show progress.’ CMS could help, but has refused to provide any more education or written information – although attorneys for the plaintiffs have repeatedly provided evidence of problems, dozens of examples, and even prepared much of the material needed to provide further education and implementation.”
Although CMS has been repeatedly urged by the Center for Medicare Advocacy and Vermont Legal Aid to do more to ensure that skilled maintenance care will be covered and available for Medicare beneficiaries, it has refused to take any additional action.
“We are returning to the Court to ask for relief that CMS has refused to provide,” said Gill Deford, Director of Litigation for the Center for Medicare Advocacy, and lead counsel for the plaintiffs. “For over two years, we have tried repeatedly to get Medicare to take additional steps to make sure that providers and contractors knew that the days of using an Improvement Standard test have ended but the agency would not do anything. We’ve provided overwhelming evidence that providers and contractors were not educated about the Settlement Agreement and that Medicare beneficiaries were still having their coverage terminated.”
“Medicare should cover observation and assessment by a skilled nurse to help maintain a beneficiary with a chronic condition,” said Michael Benvenuto of Vermont Legal Aid, attorney for Mrs. Jimmo and co-counsel for Plaintiffs. “This principle was clearly articulated in the Jimmo Settlement, but Medicare continues to deny coverage and has failed to make the necessary changes to carry that out. We are now asking the Court to enforce that mandate.”
The lawsuit was brought in United States District Court in Burlington, Vermont by seven individual plaintiffs from Vermont, Connecticut, Rhode Island, Maine and Pennsylvania and seven national organizational plaintiffs: National Multiple Sclerosis Society, the National Committee to Preserve Social Security and Medicare, Parkinson’s Action Network, Paralyzed Veterans of America, the American Academy of Physical Medicine and Rehabilitation, the United Cerebral Palsy Association and the Alzheimer’s Association.
The Center for Medicare Advocacy encourages people to appeal if they are told Medicare coverage is not available for skilled maintenance nursing or therapy because they are not improving. There is a great deal of information and self-help material on the Center’s website, www.medicareadvocacy.org, where beneficiaries can also obtain information with key provisions from the revised Medicare Manuals to show their health care providers.
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 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.