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The Settlement Agreement in Jimmo v. Sebelius, No. 5:11-CV-17 (D. VT), was approved by a federal district court in January 2013. The Centers for Medicare & Medicaid Services (CMS) was required to confirm that Medicare coverage is determined by a beneficiary’s need for skilled care and is not based on a beneficiary’s potential for improvement. Relevant chapters of the Medicare Benefit Policy Manual now clearly state that coverage “does not turn on the presence or absence of a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care. Skilled 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.”

Unfortunately, over six years since the Settlement’s approval, the Center for Medicare Advocacy still regularly hears from beneficiaries facing erroneous “Improvement Standard” denials in home health, skilled nursing facility, and outpatient therapy settings.

For example, a beneficiary’s daughter recently contacted the Center about the termination of her father’s skilled care at a nursing home. She wrote the Center about her experience, saying, “I told them about Jimmo and information on The Center [f]or Medicare Advocacy website. No one knew anything about Jimmo . . . I filed the fast appeal on February 4 and won on February 6.” However, soon after, she was told again that her father’s therapy was being terminated because he had plateaued. She noted, “[o]nce again I inform them of Jimmo. Nobody knows anything about it again! We lost the second fast appeal on February 22 . . . It is bad enough what this injury has done to my Dad, but to have a therapist come to him and say “if you don’t show improvement by Friday, you will get kicked off of Medicare” has been devastating to Dad.”

The ongoing lack of knowledge about the Jimmo Settlement among providers, contractors, and adjudicators is unacceptable but also not surprising. The Center’s 2018 national survey of providers showed that 40% of respondents had not heard about the Settlement and that 30% were not aware that Medicare coverage does not depend on a beneficiary’s potential for improvement. The Center conducted the survey after the federal judge in Jimmo v. Sebelius ordered a Corrective Action Plan in February 2017, requiring the publication of a new Jimmo webpage on CMS.gov and additional training for Medicare decision-makers.

In the face of continuing problems surrounding the implementation of the Jimmo Settlement, Center attorneys met with CMS officials in May 2018. The Center emphasized the need for improved implementation in home health, skilled nursing facilities, and outpatient therapy. The officials expressed a desire to work with the Center to provide additional education to decision-makers (although later discussions clarified that this only extended to outpatient therapy). As requested, the Center submitted language to CMS for educational materials the Center believed were to be released in August 2018. However, the Center is not aware of, and has not been informed of, any actions to improve Jimmo implementation since that May, 2018 meeting.

Despite the problems surrounding Jimmo implementation, the Center encourages Medicare beneficiaries and their families to continue appealing unfair “Improvement Standard” denials. Although beneficiaries and their families should not be in a position of having to educate providers, contractors, and adjudicators about Medicare policy, the current state of Jimmo implementation demonstrates that this is necessary. As a result, the Center advises beneficiaries and their families to continue citing to the Jimmo Settlement and related materials when challenging denials based on an erroneous “Improvement Standard.”

 

February 28, 2019 – D. Valanejad

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