As of December 6, 2013, Centers for Medicare & Medicaid Services (CMS) Policy manuals have been updated to reflect the settlement in Jimmo vs. Sebelius, No.11-cv-17 (D.VT, January 24, 2013). The manuals now make it clear that improvement is not necessary for coverage of skilled nursing and therapy services.
For example, the home health section of the manual states:
…Coverage of skilled nursing care or therapy to perform a maintenance program does not turn on the presence or absence of a patient’s potential for improvement from the nursing care or therapy, but rather on the patient’s need for skilled care. Skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, to prevent or slow further deterioration of the patient’s condition. Medicare Benefit Policy Manual, Ch. 7, 20.1.2
…Skilled Nursing services are covered where such skilled nursing 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. … MBPM, Ch. 7, 40.1.1
Maintenance Therapy – Where services that are required to maintain the patient’s current function or to prevent or slow further deterioration are of such complexity and sophistication that the skills of a qualified therapist are required to perform the procedure safely and effectively, the services would be covered physical therapy services. … MBPM, Ch. 7, 40.2.2.E
See also: MBPM Ch. 8, 30.2.1; 30.3; and 220.127.116.11.E for updated language related to skilled nursing facilities, and MBPM Ch. 15, 220.A; and 220.2.D for outpatient therapy "Maintenance Programs."
In addition to the manual changes, the education campaign required by the settlement continues. CMS has released a fact sheet and Medicare Learning Network Article, hosted a national call for providers, and will host an upcoming Open Door Forum on the manual revisions.