Two years after a landmark settlement that theoretically ended Medicare’s use of the “improvement standard,” some beneficiaries are still being denied coverage, and federal officials have refused to take any action to ensure providers are aware of the standard’s demise, according to the Center for Medicare Advocacy, which along with Vermont Legal Aid brought the original suit.
Under the settlement agreement in Jimmo v. Sebelius, the federal government agreed to end Medicare’s longstanding practice of requiring that beneficiaries with chronic conditions and disabilities show a likelihood of improvement in order to receive coverage of skilled care and therapy services. Medicare is required to cover skilled care as long as the beneficiary needs it, even if the care would simply maintain the beneficiary's current condition or slow further deterioration.
As part of the implementation of the settlement, the Centers for Medicare & Medicaid Services (CMS) carried out an educational campaign intended to ensure that Medicare determinations turn on the need for skilled care, not on the ability of an individual to improve. But information about Jimmo has by no means reached all decisionmakers.
“[M]any providers nationwide continue to believe an ‘Improvement Standard’ exists, and act accordingly, resulting in some beneficiaries failing to obtain needed services or coverage to which they are entitled,” the Center said in a statement. “CMS has refused to take any additional action to correct the ongoing misimpressions, such as posting Frequently Asked Questions on its website.”
“We are pleased that implementation of the Jimmo Settlement has helped thousands of Medicare beneficiaries,” commented Gill Deford, lead counsel for the plaintiffs and the Director of Litigation at the Center. “At the same time, however, we are disappointed that CMS refuses to acknowledge its responsibility to bring a complete halt to application of the Improvement Standard. There is no excuse for the pretense that the agency has no obligation to make additional efforts when it is clear that the offending policy is still being followed in some instances.”
Beneficiaries haven’t even been able to count on Medicare judges being aware of the settlement’s terms. As ElderLawAnswers reported, when Glenda Jimmo, the lead plaintiff in the case, appealed her Medicare denial after the settlement decision, Medicare Appeals Council judges denied her benefits again, agreeing with the previous decision that she didn't qualify for benefits because she wasn't improving. Ms. Jimmo prevailed only after filing a second federal lawsuit.
The Center for Medicare Advocacy encourages people to appeal if they are told Medicare coverage is not available for skilled maintenance nursing or therapy because they are not improving. There is a great deal of information and self-help material on the Center’s website, and patients can also contact the Center or consult its website to obtain information with key provisions from the new Medicare Manuals to show their health care providers.
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