NYTimes Shines Light on CMS Denials Despite Lawsuit

Full New York Times Article by Paula Span

Failure to Improve Is Still Being Used, Wrongly, to Deny Medicare Coverage

A federal judge last month ordered the federal Centers for Medicare and Medicaid Services to do a better job of informing health care providers and Medicare adjudicators that the so-called improvement standard was no longer in effect, and has not been for quite some time.

What matters is not a Medicare patient’s “improvement level,” as the 2013 settlement of a class-action lawsuit specified, but rather their “maintenance” level. Medicare must cover skilled care and therapy when they are “necessary to maintain the patient’s current condition or prevent or slow further deterioration.”

Glenda Jimmo and husband Dennis at their home in Lincoln, VT, photo by Andrew Stein

Glenda Jimmo and husband Dennis at their home in Lincoln, VT, photo by Andrew Stein

The 2011 lawsuit brought by the Center for Medicare Advocacy and Vermont Legal Aid became known as the Jimmo case, after Glenda Jimmo, an elderly Vermont plaintiff. A settlement reached in 2013 required C.M.S. to rewrite its manuals and to begin an educational campaign to publicize the change.

Advocates for older adults and people with disabilities cheered; a New York Times editorial praised the settlement as “clearly the humane thing to do.”

Patients and families continue to have the same right to appeal coverage denials that they’ve always had. (A notice to this effect is buried somewhere in the paperwork they sign.) They also have the same odds of prevailing they’ve always had: very low, said Judith Stein, the executive director of the Center for Medicare Advocacy.