Medicare Improvement Standard and Jimmo

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.