BackgroundIn 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.”