Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

Improvement Standard and Jimmo News

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Table Of Contents
  1. Watch the 2023 Jimmo Symposium | Jimmo v. Sebelius at 10 Years: A Call for Sustainable Implementation
  2. Submit your own Jimmo Comment, Experience or Practice Tip
  3. Update: CMS Reminds Providers and Contractors of Medicare Coverage to Maintain or Slow Decline
  4. Jimmo Corrective Action Plan Completed
  5. CMA Updates
  6. External Articles
  7. Practice Tips

Watch the 2023 Jimmo Symposium | Jimmo v. Sebelius at 10 Years: A Call for Sustainable Implementation

Originally held September 27, 2023, this virtual meeting brought together advocates, providers, beneficiaries, and others to discuss practical tips and strategies for obtaining medically necessary services pursuant to the Jimmo settlement, as well as ongoing challenges to getting and providing such care, and what we can do about it.

Agenda

  1. Introduction and Review of Jimmo Litigation – 2:00pm ET
    • Judy Stein, Center for Medicare Advocacy
    • Michael Benvenuto, Vermont Legal Aid
  1. Patient /Activist Perspective – 2:25pm
    • Suzanne Bachman and Lou Costanzo, National MS Society
    • Lynn Brielmaier, IEEE Brain
    • Sam Porritt, Falling Forward
  1. Provider Perspective – 2:45pm
    • Cindy Krafft, K&K Health Care Solutions
    • Dennis Knoff, Pinnacle Senior Care
    • Renee Kinder, Broad River Rehab
    • Ellen Strunk, Rehab Resources & Consulting
  1. Video: MS therapy clinic – 3:20pm
    • John Marmarou, 810 MS Specialty Center
  1. Advocates Perspective – 3:30pm
    • Kathy Holt, Center for Medicare Advocacy
    • Toby Edelman, Center for Medicare Advocacy
    • Ali Bers, Center for Medicare Advocacy
  1. Next Steps and Wrap Up – 3:50pm

Submit your own Jimmo Comment, Experience or Practice Tip

Update: CMS Reminds Providers and Contractors of Medicare Coverage to Maintain or Slow Decline

Skilled nursing care and skilled therapy services for beneficiaries who need skilled care to maintain function or to prevent or slow decline is covered by Medicare. That is the message of reminders issued by the Centers for Medicare & Medicaid Services (CMS) to Medicare providers as well as to Medicare Administrative Contractors.[1] CMS disseminated the information in its December 2, 2021 MLN Connects Newsletter.[2] Furthermore, CMS directed providers and contractors to visit the Jimmo Settlement Agreement webpage for further details.

The CMS language follows:

Skilled Nursing Care & Skilled Therapy Services to Maintain Function or Prevent or Slow Decline: Reminder

Medicare covers skilled nursing care and skilled therapy services under skilled nursing facility, home health, and outpatient therapy benefits when a beneficiary needs skilled care to maintain function or to prevent or slow decline, as long as:

  • The beneficiary requires skilled care for the services to be provided safely and effectively

  • An individualized assessment of the patient’s condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist are needed for a safe and effective maintenance program
Visit the Jimmo Settlement Agreement webpage for more information.

The Center for Medicare Advocacy and Vermont Legal Aid brought the Jimmo v. Sebelius class action lawsuit on behalf of beneficiaries who were being denied Medicare coverage for skilled care on the basis that they were not improving or did not demonstrate potential for improvement. In 2013, the federal district court approved a settlement agreement that confirmed Medicare coverage should be determined by a beneficiary’s need for skilled care, not the individual’s potential for improvement; Medicare covers skilled care to maintain an individual’s condition or slow decline.[3] Essentially, improvement or progress is not necessary as long as skilled care is required. The Jimmo standards apply to home health care, nursing home care, outpatient therapies, and, to a certain extent, for care in Inpatient Rehabilitation Facilities/Hospitals.[4]

Check out a collection of Jimmo resources from the Center for Medicare Advocacy here .

Jimmo Corrective Action Plan Completed

CMS Adds Resources Regarding Medicare Coverage To Help People Who Need Skilled Maintenance Nursing or Therapy

As ordered by the federal judge in Jimmo v. Sebelius, the Centers for Medicare and Medicaid Services (CMS) published a new webpage containing important information about the Jimmo Settlement on its CMS.gov website. The Jimmo webpage is the final step in a court-ordered Corrective Action Plan, designed to reinforce the fact that Medicare does cover skilled nursing and skilled therapy services needed to maintain a patient’s function or to prevent or slow decline. Improvement or progress is not necessary as long as skilled care is required. The Jimmo standards apply to home health care, nursing home care, outpatient therapies, and, to a certain extent, for care in Inpatient Rehabilitation Facilities/Hospitals.

The Jimmo webpage and other elements of the Corrective Action Plan should help ensure that the Jimmo Settlement is implemented correctly and that it opens doors to Medicare coverage and necessary care for beneficiaries who require maintenance care, including people with long-term, progressive, or debilitating conditions. As required by the Court, CMS also provided additional training for Medicare decision-makers.

Judith A. Stein, Executive Director of the Center for Medicare Advocacy, which is lead counsel for the nationwide class of Medicare beneficiaries said, “People living with MS, Parkinson’s, Alzheimer’s, paralysis and other long-term conditions have waited long enough for this relief. We hope that the new CMS education and information, which can be found at CMS.gov and printed out with the CMS logo, will help convince providers that Medicare really is available for people who need this critical maintenance care.”

“After years of fighting over this standard in court, we are hopeful that Medicare has finally acknowledged that beneficiaries with long-standing and chronic problems are entitled to maintenance skilled care to prevent or slow decline in their overall condition,” said Michael Benvenuto, of Vermont Legal Aid, co-counsel for the Jimmo plaintiffs.

The new webpage contains an “Important Message About the Jimmo Settlement,” in which court-approved language emphasizes that the Settlement “may reflect a change in practice” for providers and Medicare decision-makers who erroneously believed that the Medicare program covers nursing and therapy services only when a beneficiary is expected to improve.  Indeed, the new education and Jimmo webpage are important because many health care providers still operate under this misconception, leading beneficiaries to be wrongly denied needed services such as physical and occupational therapy.

This was the case, for example, for Mrs. B, who was denied necessary on-going physical therapy, needed to maintain her condition after spinal surgery. While she had begun to walk again independently after nursing home care, and out-patient PT, when the PT ended because it was “maintenance only,” Mrs. B declined and was no longer able to ambulate independently.

One of the “Frequently Asked Questions” posted on the Jimmo CMS.gov page clarifies that this should not happen: “The Medicare program does not require a patient to decline before covering medically necessary skilled nursing or skilled therapy.”

The Jimmo webpage contains fifteen such “Frequently Asked Questions,” which dispel other mistaken beliefs.  One answer, confirms: “Skilled services would be covered where such skilled 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.”

Judge Christina Reiss of the U.S. District Court in Vermont ordered the corrective action plan in February 2017 after finding that CMS was in breach of the original Jimmo settlement agreement, which was reached in 2013. In addition to the webpage, the Corrective Action Plan required CMS to offer additional training about coverage for skilled maintenance care for Medicare’s contractors and adjudicators who decide whether coverage will be granted.

Under the original Jimmo Settlement, CMS revised several chapters of its policy manuals (including those for Skilled Nursing Facility, Home Health, Outpatient Therapy and Inpatient Rehabilitation Facility). CMS also held an educational campaign to clarify that improvement is not required for coverage of skilled care. Lawyers for the Jimmo plaintiff class requested further action from the court when it became clear that too many people were still being wrongfully denied Medicare coverage – in part because many health care providers had not been adequately educated, and in part because many providers were still skeptical that Medicare would alter its coverage practices. The new webpage offers CMS’s official imprimatur on the correct legal standard that improvement is not required when there is a need for skilled care.

For answers to many common questions about the Settlement,
see our Frequently Asked Questions.

Skilled Maintenance Services Are Covered by Medicare.

The Center for Medicare Advocacy is pleased to announce that the Medicare Policy Manuals have been revised.

The revisions, pursuant to the Jimmo vs. Sebelius Settlement, clarify that improvement is not required to obtain Medicare coverage.  The revisions were published by the Centers for Medicare & Medicaid Services (CMS) on Friday December 6, 2013. They pertain to care in Inpatient Rehabilitation Facilities (IRF), Skilled Nursing Facilities (SNF), Home Health care (HH), and Outpatient Therapies (OPT). 

The CMS Transmittal for the Medicare Manual revisions, with a link to the revisions themselves, is posted on the CMS website at http://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R179BP.pdf.

As CMS states in the Transmittal announcing the Jimmo Manual revisions:

No “Improvement Standard” is to be applied in determining Medicare coverage for maintenance claims that require skilled care. Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes (i.e., to prevent or slow a decline in condition). The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves. The manual revisions now being issued will serve to reflect and articulate this basic principle more clearly. [Emphasis in original.]

Per the Jimmo Settlement, CMS will now implement an Education Campaign to ensure that Medicare determinations for SNF, Home Health, and Outpatient Therapy turn on the need for skilled care – not on the ability of an individual to improve. For IRF patients, the Manual revisions and CMS Education Campaign clarify that coverage should never be denied because a patient cannot be expected to achieve complete independence in self-care or to return to his/her prior level of functioning.

Background

The Jimmo settlement was approved on January 24, 2013 after a fairness hearing, marking a critical step forward for thousands of beneficiaries nationwide. (See the Order Granting Final Approval).  The lawsuit was brought on behalf of a nationwide class of Medicare beneficiaries by six individual beneficiaries and seven national organizations representing people with chronic conditions, to challenge the use of the illegal Improvement Standard.

The proposed Jimmo settlement agreement[2] was originally filed in federal District Court on October 16, 2012. The plaintiffs joined with the named defendant, Secretary of Health and Human Services Kathleen Sebelius, in asking the federal judge to approve the settlement of the case. With only one written comment received, and no class members appearing at the fairness hearing to question the settlement, Chief Judge Christina Reiss granted the motion to approve the Settlement Agreement on the record, while retaining jurisdiction to enforce the agreement in the future, as requested by the parties.

With the settlement now officially approved, the Centers for Medicare & Medicaid Services (CMS) is tasked with revising its Medicare Benefit Policy Manual and numerous other policies, guidelines and instructions to ensure that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatient settings.  CMS must also develop and implement a nationwide education campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve.

It is important to note that the Settlement Agreement standards for Medicare coverage of skilled maintenance services apply now – while CMS works on policy revisions and its education campaign. The Center is hearing from beneficiaries who are still being denied Medicare coverage based on an Improvement Standard, but coverage should be available now for people who need skilled maintenance care and meet any other qualifying Medicare criteria. This is the law of the land – agreed to by the federal government and approved by the federal judge.  We encourage people to appeal should they be denied Medicare for skilled maintenance nursing or therapy because they are not improving.

Patients should discuss with their health care providers the Medicare maintenance standard and whether it is applicable to them.  Health care providers should apply the maintenance standard and provide medically necessary nursing services or therapy services, or both, to patients who need them to maintain their function, or prevent or slow their decline.  Under the maintenance standard articulated in the settlement, the important issue is whether the skilled services of a health care professional are needed, not whether the Medicare beneficiary will “improve.”

CMS has issued a Fact Sheet outlining the Jimmo v. Sebelius. settlement.  Use this fact sheet now as evidence that skilled maintenance services are coverable for skilled nursing facility care, outpatient therapy, and home health care.  The Center for Medicare Advocacy has Self-help Packets to help pursue Medicare coverage, including for skilled maintenance nursing and therapy.

For answers to many common questions about the Settlement, see our Frequently Asked Questions.

What Can Beneficiaries Do If They Were Denied Care Under the Improvement Standard?

The Jimmo settlement also establishes a process of “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) that became final and non-appealable after January 18, 2011 because of the Improvement Standard.  You can access a request for re-review form here.  CMS discusses and links to the form here.

For people needing assistance with appeals, the Center for Medicare Advocacy has self-help materials available, including a Jimmo toolkit for skilled Nursing facility coverage. This information can help individuals understand proper coverage rules and learn how to contest Medicare denials for outpatient, home health, or skilled nursing facility care.

Why the Jimmo Case Matters:

More Background on the Jimmo Case:

CMA Updates

External Articles

For older articles, please see our archive.

Practice Tips

Help us Implement Jimmo: Donate Now!

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