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Judge Orders Medicare Agency to Comply with Settlement
in "Improvement Standard" Case, Provide More Education

In an Opinion and Order released on August 18, 2016, Chief Judge Christina Reiss, who oversees the “Improvement Standard” case (Jimmo v. Burwell, No. 11-cv-17 (D.Vt.)), ordered the federal government, through its Centers for Medicare & Medicaid Services (CMS), to comply with the Settlement Agreement that she had approved in January 2013.  The Order requires CMS to remedy the Educational Campaign, which was a cornerstone of the Settlement Agreement, by “direct[ing] the Secretary [of Health and Human Services] to propose corrective action for Plaintiffs’ consideration within forty-five days of this Order.”  The goal continues to be to end the practice of denying coverage to tens of thousands of Medicare beneficiaries by replacing the illegal “Improvement Standard” with a maintenance coverage standard.  As the Court held: “Plaintiffs bargained for the accurate provision of information regarding the maintenance coverage standard and their rights under the Settlement Agreement would be meaningless without it.”        

The Order granted in part a Motion for Enforcement filed on March 1 of this year after plaintiffs’ attorneys had been unable to persuade CMS to carry out corrective measures.  “It was distressing that CMS refused to take further action in response to the obvious systemic problems that continued to harm this particularly vulnerable class of Medicare beneficiaries,” said Judith Stein, an attorney for the plaintiffs and the Executive Director of the Center for Medicare Advocacy.  “Despite our repeated demonstrations that the word has not gotten out that people do not have to improve in order to obtain Medicare coverage for necessary care,” she added, “CMS took the position that it had done enough. We are relieved the Court has ordered CMS to do more to educate Medicare providers and decision-makers.”

Plaintiffs had consistently provided proof to CMS since January 2014 that the agency’s Educational Campaign had failed to communicate the necessary information to the providers and contractors that make the front-line decisions in the Medicare program.  “I was baffled by CMS’ resistance,” said Michael Benvenuto, another of plaintiffs’ attorneys and the Director of the Medicare Advocacy Project of Vermont Legal Aid, “because even the sampling of decisions done by an independent contractor showed an error rate of over 40%.  No matter what evidence we presented them, their response was always ‘We’ve done all we have to do.’”

Plaintiffs’ enforcement motion included 24 declarations from beneficiaries, family members, advocates, and officials of organizations dedicated to patients with chronic illnesses and injuries, and hundreds of pages of exhibits, to demonstrate the extent and ongoing nature of the problem.  “Returning to court was certainly not the preferable way to go,” explained Gill Deford, also of the Center for Medicare Advocacy and lead counsel for the plaintiffs, “but CMS simply would not budge.  We had to move for enforcement because there is no excuse for Medicare still using this illegal rule of thumb to deprive desperate beneficiaries of the care and services they need.”

The Court’s Opinion concluded that “at least some of the information provided by the Secretary in the Educational Campaign was inaccurate, nonresponsive, and failed to reflect the maintenance coverage standard,” citing as the “most compelling example … the Secretary’s ‘Summary of the questions posed and answers provided during the … National Call with contractors and adjudicators.’”  CMS will thus have to develop “corrective action” for the inadequate education effort, and if the Plaintiffs are not satisfied with it and the parties cannot agree, they may return to the judge for a resolution.

Kim Calder, Director at the National Multiple Sclerosis Society, is gratified that CMS will provide more education. “Among the reasons the National Multiple Sclerosis Society is a Jimmo plaintiff and applauded the Settlement was the promise that Medicare would provide a nationwide education campaign so Medicare’s own administrators, health care professionals and the public would know that continued ‘improvement’ is not a requirement for coverage and payment,” said Calder. “Rehabilitation therapy is an integral part of MS treatment because it helps prevent declines in walking, moving, speaking and optimal functioning.  Denying patients access to these treatments can lead to worsening disability, lack of independence and more expensive health care needs.”

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.


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.  The CMS MLN Matters article is also available on the CMS site under “Downloads” at: http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/Downloads/MM8458.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. 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:

Articles and Updates

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 PressChicago TribuneDetroit Free Press and The Hill. A more complete list media coverage is available as well.

Help us Implement Jimmo: Donate Now!


[1] Jimmo v. Sebelius, No. 11-cv-17 (D.Vt.), filed January 18, 2011.
[2] The proposed settlement is at www.medicareadvocacy.org/wp-content/uploads/2012/12/Jimmo-Settlement-Agreement-00011764.pdf
[3] http://www.nytimes.com/2012/10/24/opinion/a-humane-medicare-rule-change.html?partner=rssnyt&emc=rssSee 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.