CMS recently issued a fact sheet outlining the settlement in Jimmo v. Sebelius, including their next steps. Read it HERE.
Skilled Maintenance Services Are Covered by Medicare.
Medicare beneficiaries who need skilled nursing or therapy to maintain their condition should benefit from a federal court settlement in Jimmo v. Sebelius. 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 proposed Jimmo settlement agreement 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.
For people needing assistance with appeals, the Center for Medicare Advocacy has self-help materials available. 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.
For decades, Medicare beneficiaries – particularly those with long-term or debilitating conditions and those who need rehabilitation services – have been denied necessary care based on the "Improvement Standard". This illegal practice has resulted in Medicare coverage for vital care being denied to thousands of individuals on the grounds that their condition was stable, chronic, not improving, or that the necessary services were for "maintenance only." The use of this illegal standard has had a particularly devastating effect on patients with chronic conditions such as Multiple Sclerosis, Alzheimer's disease, ALS, Parkinson's disease and paralysis. The lawsuit, Jimmo v. Sebelius, 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.
- What Does the Jimmo Settlement Agreement Mean?
A: The Jimmo agreement settles once and for all that Medicare coverage is available for skilled services to maintian an individual’s condition. Under the maintenance coverage standard articulated in the Jimmo Settlement, the determining issue regarding Medicare coverage is whether the skilled services of a health care professional are needed, not whether the Medicare beneficiary will "improve." Pursuant to Jimmo, medically necessary nursing and therapy services, provided by or under the supervision of skilled personnel, are coverable by Medicare if the services are needed to maintain the individual’s conditon, or prevent or slow their decline.
- Can the Jimmo Settlement Agreement help now?
A: Yes. The Settlement Agreement standards for Medicare coverage of skilled maintenance services apply now. In fact, the government insists that it is only clarifying what has always been the Medicare coverage standard and that the Settlement does not change Medicare laws or regulations. The law never suported the requirement that people improve in order to get Medicare. Accordingly, health care providers should implement the maintenance standard now. Patients should discuss the Medicare maintenance standard with their providers to determine if it is applicable to them.
Use the Center’s Self-Help Packets to help understand proper coverage rules and contest a Medicare denial for outpatient, home health, or skilled nursing facility care. Include a copy of the Settlement Agreement, key pages and sections of the Agreement are highlighted in yellow in the version on the Center’s website; www.medicareadvocacy.org.
Explain that the Settlement confirms, and the government agreed, that skilled services are covered when they are required to maintain a patient’s condition, or prevent further deterioration. Providers and Medicare decision-makers should be pushed to change their approach based on the Settlement – now.
When fully implemented, the Settlement Agreement will result in new manual provisions explicitly covering maintenance nursing and therapy, and formal education of adjudicators and providers. But there is no reason not to make the argument now. Perhaps some decision-makers can be educated before the CMS’s education campaign begins – probably beginning in the summer of 2013. If denials persist, people will be entitled either to re-review later on in the Settlement process or a higher level of review in the regular Medicare appeals process.
Has CMS made any public statement regarding the current application of the Jimmo settlement?
A. CMS recently issued a fact sheet outlining the settlement in Jimmo v. Sebelius, including their next steps. Read it HERE.
In addition, on January 28. 2013, a spokesman for the agency told the Congressional Quarterly, "we are working to implement the terms of the settlement and ensure that beneficiaries have access to the full range of services that they are entitled to under the law. The settlement will clarify existing policy that claims should not be denied solely based on a rule-of-thumb determination that a beneficiary's condition is not improving."
[CMS spokesman Brian Cook in an email message to Congressional Quarterly]
Also, from the Department of Health and Human Services (HHS):
"Under this settlement, Medicare policy will be clarified to ensure that claims from providers are reimbursed consistently and appropriately and not denied solely based on a rule-of-thumb determination that a beneficiary’s condition is not improving," said Fabien Levy, a spokesman for the U. S. Department of Health and Human Services, which includes the Medicare program. (as quoted in The New York Times at: http://newoldage.blogs.nytimes.com/2013/02/04/therapy-plateau-no-longer-ends-coverage/)
Does the Settlement apply to both Medicare Part A and Part B?
A: Yes. The Settlement applies to both Medicare Part A and B. In fact, the Agreement specifically covers outpatient physical therapy, occupational therapy and speech therapy, and long term home health care, which are covered by Part B.
- Does the Settlement apply to both Medicare managed care (Medicare Advantage) as well as to the traditional Medicare program?
A: Yes. The Settlement applies equally to Medicare Advantage as to the traditional Medicare program. By law coverage in Medicare Advantage plans must be at least equal to that under traditional Medicare.
- Does the Jimmo Settlement Agreement only apply to people with certain diseases, diagnoses, or conditions?
A: No. The Settlement is not limited to particular conditions or diseases. It applies to anyone who requires silled services to maintain or slow deterioration regardless of the underlying illness, disability or injury.
- Does the Jimmo Settlement Agreement apply to services provided at home or as an outpatient, or only to nursing home coverage?
A: The Settlement Agreement applies to skilled maintenance services provided in all three care settings - under Medicare home health, outpatient therapy and skilled nursing facility benefits.
- Will the Jimmo Settement allow people to get coverage for physical therapy at home?
A: Yes. Physical therapy, speech and occupational therapies are covered service under the Medicare home health benefit. If the individual meets the other Medicare home health qualifying criteria, the Jimmo Settlement makes it clear that "maintenance therapy” can be covered under the home health benefit if a qualified therapist is required to ensure the care is safe and effective.
- Does the Jimmo Settlement Agreement add to the number of days Medicare will cover in a nursing home?
A: No. The Medicare law provides for up to 100 days of coverage per benefit period. The Jimmo Settlement confirms that Medicare coverage is avaiable for skilled nursing and therapy that is needed to maintain a person’s condition or slow deterioration, for nursing home, home health, and outpatient therapy. However, it does not add to the number of days of coverage.
I qualify for continued maintenance therapy because of Jimmo, but what happens when I reach the therapy payment cap?
A: You should request an exception to the therapy cap. Have your doctor order the continued therapy and state in writing that a skilled therapist continues to be required for you to maintain your condition or slow deterioration. This should be a basis for continued care above the cap, as it is to begin therapy. For more information, see this issue brief on the therapy cap exceptions process.
- What if my skilled care already stopped because of the Improvement Standard and I am no longer receiving services?
A: If skilled services stopped because of the Improvement Standard and your physician thinks the services are needed, ask your doctor to prescribe the skilled nursing or therapy again. The doctor should explain in writing why skilled nursing or therapy is required: How will you benefit? Will the services help you maintain your current condition or prevent or slow deterioration? The doctor should be as specific as possible in explaining why skilled care is needed given your unique medical condition. You may want to show the Jimmo Settlement Agreement to the doctor and health care provider to make it clear that improvement is not required for Medicare coverage – and that coverage is available for skilled maintenance care.
Remember that all other Medicare requirements must still be met. For example, skilled therapy in a nursing facility could be re-prescribed, however the 3-day hospital stay that is required for coverage must also be met again. The homebound requirement still applies for Medicare coverage of home health care, and the annual dollar cap applies for outpatient therapies.
- Is the Jimmo Settlement Retroactive?
A: Yes. The Settlement Agreement goes back to the date the case was filed, January 18, 2011. The Agreement establishes a process called "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). After the government completes the revision of its policy and guidelines, and educates Medicare decision-makers, individuals will be able to get a re-review of these claims. The denial must have come from Medicare and must be for services that were actually received, but not paid for by Medicare. The Medicare denial must have become final and non-appealable after January 18, 2011 and before the end of the educational campaign (expected to be by the end of 2013). This means that claims must have been submitted to Medicare and denied, and the normal deadline for further appeal must have expired, The beneficiary may have tried appealing the denial through the regular Medicare appeal system; it does not matter at which level the beneficiary stopped as long as the outcome is a denial and the deadline for further appeal has passed.
CMS will explain how beneficiaries can invoke the re-review process. As more information becomes available, the Center for Medicare Advocacy will post it on this site.
Providers and Medicaid agencies are not eligible for re-review of claims under the Settlement Agreement.
- Will the Jimmo Settlement Agreement cost Medicare too much?
A: The Settlement only provides Medicare coverage for what the law has always required, and for which people pay into Medicare to receive. The skilled maitenance nursing and therapy that is at the heart of the Settlement is usually low-cost, low-tech care that will often prevent the individual from declining further and requiring more intense, more expensive care. In addition to being the right and legal thing to do, ccovering services such as those included in the Settlement Agreement may actually be more cost-effective than failing to provide these services.
In an October 24, 2012 editorial, "A Humane Medicare Rule Change," the New York Times recognized the proposed Jimmo settlement as reversing an "irrational and unfair approach to medical services." The Times also noted that significant cost savings could result from covering necessary services to maintain an individual’s condition. As The Times recornized, when people receive medically necessary nursing and therapy services that enable them to maintain their functioning or slow their decline, many are able to stay home and avoid expensive hospitalization and nursing home care.
A recent study regarding a Veteran Administration (VA) care model makes this point. In the VA program primary care teams are provided to assist the highest cost patients with multiple chronic diseases in their homes. The program operates in more than 250 locations, has an average daily census of more than 27,000 patients and has shown savings where costs are the highest of 24%. It has reduced hospitalizations by over 60% and has reduced nursing home use by over 80%. Many similar programs show savings on the highest cost patients of 50% or more, while showing very high patient/caregiver satisfaction.
WHY THE JIMMO CASE MATTERS: IMPROVEMENT STANDARD STORIES (print stories only)
Lead plaintiff in the Improvement Standard case, Glenda Jimmo of Bristol, Vermont is blind and has had her right leg amputated due to complications from diabetes. She requires a wheelchair, and receives multiple home health care visits per week for various treatments for her complex condition. However, Medicare denied coverage for these services, saying that she was unlikely to improve.
Since 1987, Mrs. Berkowitz, an 81 year-old woman with Multiple Sclerosis, has frequently been told that her Medicare coverage and home health services are being discontinued because her MS "is not improving." Each time, she has called on the Center for Medicare Advocacy to fight for her and ensure that her care continues. Each time, the Center has successfully advocated to keep her Medicare and home care in place. People like Mrs. Berkowitz helped the Center know how harmful this illegal basis for Medicare denial is for people with long-term and chronic conditions. As a result of working with her, and many other people with long-term conditions, the Center has been able to seek, and obtain, systemic change to help ensure fair access to Medicare coverage and necessary health care for all beneficiaries in similar circumstances
Video: Edith Masterman: Fighting to Keep Medicare Services
"My husband is one of the few remaining World War II veterans who served in both the Atlantic and Pacific theaters. He joined the U.S. Navy right after Pearl Harbor and even served in the Battle of Iwo Jima. He has suffered from Parkinson's disease for several years, and he recently fell in our home. After he was released from the hospital, he was transferred to a skilled nursing facility. After some time, his Medicare coverage was terminated because he was not 'improving.' We have already appealed multiple times."
"I was a practicing physical therapist who left the health and nursing home field and began practicing law because of this very issue – I was being forced to discharge clients much sooner than they should have been, and their coverage would decline without skilled care, but it wouldn’t be covered since they were not 'making progress.' I refused to be a part of this system and resigned."
"These changes [from the Jimmo Settlement] are extremely meaningful, as my mother has repeatedly been denied the ability to continue the physical therapy she needs in order to prevent further deterioration of her condition. It has been extraordinarily frustrating, and after the last cessation of PT and subsequent deterioration actually endangered her life, her quality of life was greatly affected, resulting in extremely expensive 24/7 care. If she could have kept her PT services, this would not have happened!"
-Veronica, New Hampshire
Attorneys from the Center for Medicare Advocacy, Vermont Legal Aid and the Centers for Medicare & Medicaid Services (CMS) have agreed to settle the "Improvement Standard" case, Jimmo v. Sebelius, No. 11-cv-17 (D.VT), filed January 18, 2011. A proposed settlement agreement was filed in federal District Court on October 16, 2012. When the judge approves the proposed agreement, a process that may take several months, CMS will revise the Medicare Benefit Policy Manual and other Medicare Manuals to correct suggestions that Medicare coverage is dependent on a beneficiary "improving." New policy provisions will state that skilled nursing and therapy services necessary to maintain a person's condition can be covered by Medicare.
CMS will then undertake a comprehensive nationwide Educational Campaign to inform health care providers, Medicare contractors, and Medicare adjudicators that they should not limit Medicare coverage only to beneficiaries who have the potential for improvement. Instead, providers, contractors, and adjudicators must recognize "maintenance" coverage and make decisions based on whether a beneficiary needs skilled care that must be performed or supervised by a professional nurse or therapist. Jimmo will be certified as a nationwide class.
As advocates, beneficiaries, and their families have long known, the Improvement Standard has harmed thousands of older and disabled Medicare beneficiaries who need skilled care to maintain their conditions. Among those most affected are those with chronic conditions. The effects of the Improvement Standard on beneficiaries with chronic conditions is underscored by the organizations that joined individual Medicare beneficiaries in challenging the Improvement Standard – the National Multiple Sclerosis Society, Parkinson's Action Network, Paralyzed Veterans of America, the Alzheimer's Association, United Cerebral Palsy, and the National Committee to Preserve Social Security and Medicare.
In an October 24, 2012 editorial, "A Humane Medicare Rule Change," The New York Times recognized the proposed settlement as reversing an "irrational and unfair approach to medical services" that developed "over decades because of Medicare's fragmented and loosely administered process for handling beneficiary claims." The editorial praised the settlement as "clearly the humane thing to do for desperately sick people with little hope of recovery."
An important point, also identified by The New York Times, is that significant cost savings could result from applying the corrected coverage standard. When Medicare beneficiaries receive medically necessary nursing and therapy services that enable them to maintain their functioning or prevent or slow their decline, many will be able to stay their homes and avoid expensive hospitalization and nursing home care.
A key current public health initiative – reducing avoidable hospitalizations and rehospitalizations – is based on evidence that avoidable hospitalizations not only often result in poor outcomes for patients but also are enormously expensive for the Medicare program. Under the Improvement Standard, beneficiaries were able to obtain care and treatment under the Medicare program only after their health deteriorated, often to the point of rehospitalization. By preventing the inappropriate denial or premature discontinuation of Medicare coverage for beneficiaries, the Jimmo settlement should lead to smarter, and potentially less expensive, health care for many people and relief for their families.
What Can Beneficiaries Expect Now?
As CMS recognizes, the settlement does not change the underlying law and regulations governing the Medicare program. Accordingly, since the underlying Medicare law is not changed, health care providers should implement the maintenance standard now.
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."
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. Shortly after the federal district court approves the settlement, CMS will announce how beneficiaries can invoke the re-review process. As more information becomes available, the Center for Medicare Advocacy will post information on its website.
Under the Jimmo Settlement Agreement, the Center for Medicare Advocacy and Vermont Legal Aid will be monitoring compliance with the terms of the settlement. We want to hear from you. Please keep us informed of your experiences, both positive and negative.
|Winning this historic class action lawsuit is just the beginning.
We need your support now to ensure the settlement is effectively implemented and communicated, ensuring full and fair access to Medicare and necessary health care for older and disabled Americans.
Be part of history by making your donation Today!
Recorded Webinar: Medicare Coverage for Skilled Maintenance Services Update: Jimmo vs. Sebelius, CA, No. 5:11-CV-17-CR (D. VT, 10/16/2012)
Presented by lead counsel for the Jimmo Plaintiffs, this webinar will provide the latest information regarding the Settlement Agreement and implementation of the national class action litigation, Jimmo vs. Sebelius. The proposed Jimmo Settlement Agreement was jointly filed in federal district court by the Justice Department, representing the defendant U.S. Secretary of Health & Human Services, and the Center for Medicare Advocacy and Vermont Legal Aid, representing the Plaintiffs, on October 16, 2012. The Agreement confirms that skilled nursing and therapy to maintain an individual’s condition can be covered by Medicare in a skilled nursing facility, at home, or on an outpatient basis. The webinar will provide up-to-date information about:
The history and status of Jimmo;
Next steps, including CMS policy manual revisions, implementation, and education campaign;
What Medicare beneficiaries can do now if they require skilled maintenance services
An opportunity to ask questions of attorneys who represent the Jimmo Plaintiffs.
Judith Stein – Executive Director, Center for Medicare Advocacy
Gill Deford – Litigation Director, Center for Medicare Advocacy
Margaret Murphy – Associate Director, Center for Medicare Advocacy
- Self-Help Packets
- Jimmo, et al vs. Sebelius
- Read the Amended Complaint, filed 03/03/2011.
- Read the Center for Medicare Advocacy's press release announcing the lawsuit.
- Learn more about media coverage on this issue.
- Listen to the audio news conference announcing the lawsuit (streaming audio).
- Tell your story with us today, if you or someone you know has had problems obtaining Medicare coverage because their condition was said to be chronic, not stable, or not likely to improve.
- Coverage for People with Chronic Conditions
- Recorded Web Seminar: Overcoming Barriers to Medicare Coverage of Skilled Nursing Facility Care
- The New York Times exclusive: "Settlement Eases Rules for Some Medicare Patients", by Robert Pear
- The New York Times editorial: "A Humane Medicare Rule Change"
- Bloomberg BNA Article by Center Executive Director Judith Stein (.pdf format): "Jimmo Settlement Invalidates Improvement Mandate for Medicare Coverage"
- Jimmo v. Sebelius April 17, 2013
- Self Help Packet for Expedited Home Health Care Appeals Including “Improvement Standard” Denials February 22, 2013
- Judge Approves Settlement in Jimmo vs. Sebelius After Court Hearing January 24, 2013
- Improvement Standard Fairness Hearing Scheduled: Next Step to Eliminating Harmful Standard for Good January 22, 2013
- Warning: Medicare Payment Limits Are Bad for Health! December 13, 2012
For older articles, please see our archive.
The case filing of the class action lawsuit received extensive coverage in the media, including articles by the Associated Press, Chicago Tribune, Detroit Free Press and The Hill. A more complete list media coverage is available as well.
 Jimmo v. Sebelius, No. 11-cv-17 (D.Vt.), filed January 18, 2011.
 The proposed settlement is at www.medicareadvocacy.org/wp-content/uploads/2012/12/Jimmo-Settlement-Agreement-00011764.pdf
 http://www.nytimes.com/2012/10/24/opinion/a-humane-medicare-rule-change.html?partner=rssnyt&emc=rss. See also Robert Pear, “Accord to Ease Medicare Rules in Chronic Cases; Longtime Policy Ends,” The New York Times, page 1 (Oct. 23, 2012), http://www.nytimes.com/2012/10/23/us/politics/settlement-eases-rules-for-some-medicare-patients.html.