Federal Court Decides on Medicare Skilled Care Settlement Agreement

JimmoFULLOn August 17, 2016, the U.S. District Court for the District of Vermont, rendered a decision in the case of Jimmo v. Burwell, case No. 5:11-cv-17.  The complainants claimed the Center for Medicare and Medicaid Services (CMS) have failed to implement their part of a Settlement Agreement which the Court entered a judgement on back on January 24, 2013.
According to the Settlement Agreement, the plaintiffs and CMS agreed to a “maintenance standard” for Medicare coverage purposes, which provides that “(s)killed 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.”
 
The plaintiffs claimed CMS has flat-out “refused” to clear up the confusion which exists within the long-term care provider community. Earlier this year, they filed a motion to compel the government to adhere to the terms of the 2014 settlement. The Court held that CMS did not violate the Settlement Agreement by the revisions to the Medicare Benefit Policy Manual (MBPM) buyt has failed to provide an “educational campaign” to alert beneficiaries and providers to therapy services that might be available to help them maintain, rather than improve, their condition.  The court also found CMS’ activities “failed to fulfill the letter and spirit of the Settlement Agreement” and ordered that CMS undertake corrective action for the plaintiffs’ consideration within 45 days of the Order, with the possibility of referral back to the Court in the event of lack of agreement.

 

McKnight Article- May 2016

 

 Center for Medicare Advocacy – March 2016

 

 
Background

In June of 2012, Glenda Jimmo, then 76, argued Medicare should have paid for the nursing care and other skilled services she received at her home during 2007.   Jimmo is legally blind and has a partially amputated leg due to complications from diabetes.  The court agreed, that she was entitled to coverage because her condition had stabilized even though she was not improving.

 

In the 2012 settlement that bears her name, the court agreed that improvement was not required and allowed many Medicare beneficiaries with chronic conditions and disabilities to appeal claims that had been denied because they were unlikely to get better.

“This should give hope to other people who are going through the Medicare appeals process,” said Judith Stein, executive director of the Center for Medicare Advocacy, which filed the original class action lawsuit with Vermont Legal Aid and negotiated both settlements.  “It’s helpful to know that people will get a fair shot for an appeal because if Mrs. Jimmo couldn’t, who could?”

After the 2012 settlement, Jimmo was one of the first seniors to seek a review. But Medicare’s highest appeals panel, the Medicare Appeals Council, upheld the original denial of her claims in April. Her attorneys went back to federal court, claiming the panel did not follow the principles laid out in the settlement. Medicare officials agreed that the Medicare Appeals Council’s denial “shall have no remaining force or effect.”

 

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.”