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Background

The United States District Court for the District of Vermont approved a settlement agreement in Jimmo v. Sebelius[1] on January 23, 2013. The Jimmo Settlement required the Centers for Medicare & Medicaid Services (CMS) to confirm that Medicare coverage of skilled nursing facility, home health, and outpatient therapy services must be determined on the basis of a beneficiary’s need for skilled care,[2] not on the individual’s potential for improvement.[3] Relevant chapters of the Medicare Benefit Policy Manual, revised as a result of the Settlement Agreement, now state that “[s]killed care may be necessary to improve a patient’s condition, to maintain a patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.”[4] The Settlement means that Medicare beneficiaries cannot be denied coverage for skilled nursing or therapy, in any of the settings, when skilled personnel must provide or supervise the care for it to be safe and effective.[5] The Jimmo Settlement pertains to all Medicare beneficiaries nationwide, regardless of whether an individual has traditional Medicare or is in a Medicare Advantage plan.

Unfortunately, more than six years after the Settlement’s approval, the Center for Medicare Advocacy (the Center), plaintiffs’ attorney in Jimmo, still regularly hears from Medicare beneficiaries and providers across the country about continuing problems with implementation. The Center’s 2018 national survey of providers found that a shocking 40 percent of respondents had never even heard about the Settlement and that 30 percent were not aware that Medicare coverage does not depend on the beneficiary’s potential for improvement.[6] Despite challenges with the Settlement’s implementation, beneficiaries and their representatives can still successfully appeal these unlawful denials of medically necessary care when they understand the appeals process and are knowledgeable about the Jimmo Settlement.

Filing an Appeal

The purpose of an expedited or “fast-track” appeal is to determine the eligibility for, or entitlement to, continued Medicare coverage.[7] For Medicare beneficiaries in skilled nursing facilities (SNFs), the timeframe for an expedited or fast-track appeal begins when the SNF provides the resident with the Notice of Medicare Non-Coverage (NOMNC). The SNF must provide the NOMNC at least two days before Medicare-covered services are scheduled to end.[8] The NOMNC includes detailed instructions for filing an expedited appeal with the Beneficiary and Family Centered Quality Improvement Organization (BFCC-QIO) or a fast-track appeal with the Independent Review Entity (IRE).[9] Medicare beneficiaries or their representatives have until noon the day after receiving the NOMNC to file the appeal.[10] After the QIO or IRE receives the appeal request, the SNF must provide the beneficiary a Detailed Explanation of Non-Coverage, which explains the specific reasons why Medicare-covered services are being terminated.[11]

The QIO or IRE makes a determination quickly.[12] If the QIO or IRE does not decide in the beneficiary’s favor, the decision includes instructions for requesting a reconsideration (thereby raising the case to the second level of appeal).[13] Unsuccessful expedited or fast-track appeals[14] can be raised to the third level of appeal: a hearing before an administrative law judge (ALJ).[15] ALJ hearings are not expedited or fast-tracked. Services provided to beneficiaries in traditional Medicare or Medicare Advantage after the termination date do not fall within the scope of this ALJ hearing.[16] A separate appeal is necessary to seek payment for Medicare-covered services that are actually provided after the termination date.[17]

Gathering Support and Preparing the Argument

First, Medicare beneficiaries or their representatives should request a copy of the beneficiary’s medical record. The SNF must provide a copy or access to any documentation that it sends to the QIO, including any records provided over the telephone.[18] Beneficiaries or their representatives should use the medical record to support their argument that ongoing skilled care is medically necessary. Beneficiaries or their representatives should also share the medical record with primary care professionals involved in the beneficiary’s care.

Second, beneficiaries or their representatives should seek letters of support from primary care professionals, such as the community physician and physical therapist, involved in the beneficiary’s treatment. The primary care professional’s letter should address the beneficiary’s condition, detail why skilled care is still necessary in order to continue improving or maintaining the beneficiary’s condition, and how the beneficiary’s condition would worsen if skilled care were not provided. Support letters should be included with appeal requests and discussed during the ALJ hearing.

Third, when requesting an appeal, beneficiaries or their representatives should explain why skilled care is still medically necessary, using the medical record and personal experience. If the beneficiary is improving, albeit more slowly than the SNF or Medicare Advantage plan would like, the request should document the beneficiary’s progress and explain how terminating skilled care would negatively affect the beneficiary. If the beneficiary is truly no longer improving and needs maintenance therapy or nursing to slow or prevent further decline, then the request should document why skilled care is necessary to maintain the beneficiary’s condition.

Finally, beneficiaries or their representatives should reference the Jimmo Settlement in their appeal requests and during the ALJ hearing. Given the lack of knowledge about the Settlement among providers, it is important that beneficiaries or their representatives remind QIOs, IREs, and ALJs that Medicare coverage cannot be denied solely on the basis of an erroneous improvement standard. Beneficiaries or their representatives should quote the Settlement language and provide a citation. Additionally, beneficiaries or their representatives should include official materials from CMS’s Jimmo-dedicated webpage,[19] including fact sheets, manual chapter revisions with red italics that indicate Jimmo-related changes,[20] MLN Connects Call materials, and FAQs, in their appeal requests.

A Successful Appeal

The Center recently received copies of two appeal letters that a beneficiary’s daughter (an attorney) sent to the QIO on behalf of her mother. Both of the letters successfully persuaded the QIO to decide in the beneficiary’s favor.[21] The letters detailed how the beneficiary had made clear progress during her limited stay at the SNF, addressed the inadequate amount of skilled therapy the SNF provided to her mother, and discussed the Jimmo Settlement. The daughter also noted the absence of a “communicated care plan,” or invitation to participate in a care planning meeting for her mother, and prejudgment by the Medicare Advantage plan to limit coverage, based on her mother’s dementia.

An Unsuccessful Appeal

If a beneficiary’s expedited or fast-track appeal is unsuccessful, Medicare still allows beneficiaries to resume their benefit period within 30 days of the last Medicare-covered day.[22] Before the 30-day period ends, beneficiaries should ask the SNF to perform another assessment to determine whether skilled care to improve or maintain the beneficiary’s condition is once again medically necessary.

Beneficiaries in traditional Medicare may be able to continue receiving skilled care at the SNF by submitting a “demand bill.” In such cases, the SNF must provide the beneficiary with a SNF Advance Beneficiary Notice (ABN).[23] The SNF ABN provides the beneficiary with the option to continue receiving care and to submit a demand bill to Medicare.[24] In such cases, beneficiaries must agree to be financially responsible for the cost of continued care if Medicare denies coverage.[25] After beneficiaries request a demand bill, an initial decision will be made by a Medicare Contractor and it will likely be a denial because the provider will have billed the care as non-covered. The denial will be reflected in beneficiaries’ Medicare Summary Notice (MSN).[26] Beneficiaries who have denials in their MSNs have the right to a standard appeal (i.e., not expedited).[27] Medicare Advantage enrollees may seek reimbursement for uncovered care by requesting an “organization determination.”[28]

Outpatient Therapy for SNF Residents

Medicare beneficiaries have another option for receiving skilled maintenance therapy services at a SNF. As noted above, the Jimmo Settlement applies to Medicare-covered outpatient therapy services (equally as it does to SNF and home health services).[29] Therefore, beneficiaries who have been denied Medicare coverage under Part A for the overall SNF stay, can request that skilled therapy be provided at the facility on an outpatient basis, under Part B.[30] Medicare Part B is responsible for covering the cost of medically necessary outpatient therapy services at the SNF, but beneficiaries are still responsible for the cost of room and board.[31]

Conclusion

While challenging a termination of Medicare-covered care may seem daunting, beneficiaries and their representatives have been successful when equipped with the right information about Medicare appeals and the Jimmo Settlement. Even if the expedited or fast-track appeal is unsuccessful, beneficiaries have other options for continuing skilled nursing or therapy services at a skilled nursing facility. For more information about the Jimmo Settlement and additional resources, please visit www.MedicareAdvocacy.org.

* The Center for Medicare Advocacy wrote this article for the California Advocates for Nursing Home Reform (CANHR). This article was made possible by a grant from the John A. Hartford Foundation. The John A. Hartford Foundation, based in New York City, is a private, nonpartisan, national philanthropy dedicated to improving the care of older adults. For more information, please visit www.JohnAHartford.org.

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[1] No. 5:11-CV-17 (D. Vt).
[2] Medicare coverage of skilled nursing facility care requires that the beneficiary needs and/or is provided skilled nursing or therapy services daily (seven days a week). 42 C.F.R. §§ 409.31(b)(1), 409.34(a). Skilled therapy satisfies the “daily basis” criteria if the services are provided at least five days a week. Id. at § 409.34(a)(2).
[3] CMS Transmittal 179, Pub 100-02, 1/14/2014; see also 42 C.F.R. § 409.32 (discussing post-hospital SNF care, the regulation states, “[t]he restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.”).
[4] Medicare Benefit Policy Manual (MBPM), Ch. 7, §§ 20.1.2, 40.1-40.2; MBPM, Ch.8, §§ 30.2-30.4; MBPM, Ch. 15 §§ 220, 220.2-220.3, 230.1.2.
[5] 42 C.F.R. § 409.32(a).
[6] CMS’ Jimmo v. Sebelius “Improvement Standard” Education Still Not Working, Center for Medicare Advocacy, https://www.medicareadvocacy.org/center-for-medicare-advocacy-survey-cms-jimmo-v-sebelius-improvement-standard-education-still-not-working/ (last visited Aug. 27, 2019).
[7] If the beneficiary continues to receive skilled services after the termination of Medicare coverage, he or she needs to request that the SNF submit a “demand bill” to Medicare. See infra notes 23-27 and accompanying text. If the claim is denied, the beneficiary may file a standard appeal (using the Medicare Summary Notice) for reimbursement. 42 C.F.R. § 405.921(a). For beneficiaries in a Medicare Advantage plan, Medicare Advantage appeal rights may apply. See infra note 28 and accompanying text.
[8] 42 C.F.R. §§ 405.1200(b)(1), 422.624(b)(1).
[9] Id. at §§ 405.1200(b)(2), 422.624(b)(2)
[10] Id. at §§ 405.1202(b)(1), 422.626(a)(1).
[11] Id. at §§ 405.1202(f)(1), 422.626(e)(1).
[12] For those in traditional Medicare, the QIO must make a determination within 72 hours of receiving the appeal request. Id. at § 405.1202(e)(6). For those enrolled in Medicare Advantage plans, the IRE must make a decision “by close of business of the day after it receives the information necessary to make the decision.” Id. at § 422.626(d)(5).
[13] Id. at §§ 405.1202(e)(8); § 422.626(g). Individuals in traditional Medicare have until noon the following day to file a request for reconsideration and a decision must be made within 72 hours of the request. Id. at § 405.1202(b)(1)-(c)(3). Beneficiaries may request an extension of up to 14 days. Id. at § 405.1204(c)(6). Medicare advantage enrollees have within 60 days after receiving notice of the decision to request a reconsideration. Id. at § 422.6269(g)(1). The IRE must make a decision “as expeditiously as the enrollee’s health condition requires but no later than within 14 days” of receiving the request. Id. at § 422.6269(g)(2).
[14] SNFs cannot bill beneficiaries “for any disputed services until the expedited determination process (and reconsideration process, if applicable) has been completed.” Id. at § 405.1202(g). However, if both levels of appeal are unsuccessful, SNFs will be allowed to the bill the beneficiary for uncovered care. This protection may be different for Medicare Advantage enrollees.
[15] Beneficiaries have within 60 days of receiving the reconsideration decision to request a hearing before an administrative law judge (ALJ). Id. at §§ 405.1002(a)(1), 422.602(b)(1). ALJ hearings are not expedited. ALJs should make a decision within 90 days of receiving the appeal request. Id. at § 405.1016(a).
[16] See Mary Ashkar, Expedited v. Standard Medicare Appeals: Not Knowing the Difference Could Cost You Your Appeal Rights!, Center for Medicare Advocacy (2017), https://www.medicareadvocacy.org/expedited-v-standard-medicare-appeals-not-knowing-the-difference-could-cost-you-your-appeal-rights/ (“The reasoning is that in an expedited appeal, the lower review levels only look at the decision to terminate coverage, and not whether any services provided thereafter were reasonable and necessary.”); see also 42 C.F.R. § 405.1032(a) (“The issues before the ALJ or attorney adjudicator include all the issues for the claims or appealed matter specified in the request for hearing that were brought out in the initial determination, redetermination, or reconsideration that were not decided entirely in a party’s favor.”).
[17] See infra notes 23-27 and accompanying text.
[18] 42 C.F.R. §§ 405.1202(f)(3), 422.626(e)(2).
[19] https://www.cms.gov/Center/Special-Topic/Jimmo-Center.html (last visited Sept. 3, 2019).
[20] CMS’s Jimmo webpage includes two versions of the MBPM: a version that highlights the changed language in red italics and another version with uniform black font.
[21] Toby S. Edelman, Jimmo Implementation: Beneficiary Successfully Appeals Denial of Maintenance Therapy, Center for Medicare Advocacy, https://www.medicareadvocacy.org/jimmo-implementation-beneficiary-successfully-appeals-denial-of-maintenance-therapy/ (last visited Aug. 27, 2019).
[22] 42 C.F.R. § 409.36(a). MA plans may differ from traditional Medicare with respect to pre-admission requirements. It is important to read the MA plan’s literature to see what is required to access SNF benefits. 42 CFR 409.30(b)(2).
[23] See Medicare Claims Processing Manual (MCPM), Ch. 30, §§ 70 (outlining the SNF ABN implementation standards).
[24] Links to the SNF ABN and SNF ABN instructions can be found at https://www.cms.gov/Medicare/Medicare-General-Information/BNI/FFS-SNFABN-.html  (last visited Sept. 3, 2019).
[25] For more information about ABNs, please visit: https://www.medicare.gov/claims-appeals/your-medicare-rights/advance-beneficiary-notice-of-noncoverage.
[26] 42 C.F.R. § 405.921(a)(2). For more information about MSNs, please visit: https://www.medicare.gov/forms-help-resources/mail-you-get-about-medicare/medicare-summary-notice-msn.
[27] 42 C.F.R. § 405.921(a)(2)(iii). For more information about standard appeals, please visit: https://www.medicare.gov/claims-appeals/file-an-appeal/appeals-original-medicare/appeals-level-1-company-handling-medicare-claims-redetermination.
[28] 42 C.F.R. at § 422.566.
[29] See supra notes 3-4 and accompanying text.
[30] See MBPM, Ch. 15, § 220.1 (stating the coverage criteria for Medicare-covered outpatient therapy services); Id. at § 220.1.4. (“Coverage includes therapy services furnished by participating hospitals and SNFs to their inpatients who have exhausted Part A inpatient benefits or who are otherwise not eligible for Part A benefits.”).
[31] See id. at § 220.1.4 (“Thus, whenever a hospital or SNF furnishes outpatient therapy to a Medicare beneficiary (either directly or under arrangements with others) it must bill the program under Part B and may charge the patient only for the applicable deductible and coinsurance.”). Medicare Advantage enrollees should consult their plan’s documentation about coverage of outpatient therapy.

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