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Jimmo v. Sebelius Plaintiffs Return to Court to Urge Enforcement 

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.


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.