[This article was originally published on January 21, 2011. The links were updated on August 24, 2018.]
Five national organizations have filed a nationwide class action suit against the Department of Health and Human Services to end Medicare's practice of denying skilled nursing coverage when a beneficiary ceases to show improvement.
Home health agencies and nursing homes that contract with Medicare routinely terminate the Medicare coverage of a beneficiary who has stopped improving, on the grounds that the patient needs only custodial care, which Medicare does not cover. The lawsuit, Jimmo v. Sebelius, filed with the U.S. District Court for the District of Vermont, charges that Medicare uses a "covert rule of thumb" known as the "Improvement Standard" to illegally deny coverage to such patients. In fact, according to the complaint, neither Medicare's statute nor its regulations require improvement for continued skilled care.
Filing the lawsuit were the Center for Medicare Advocacy and Vermont Legal Aid on behalf of five Medicare enrollees and the National Multiple Sclerosis Society, the Parkinson's Action Network, the Paralyzed Veterans of America, the National Committee to Preserve Social Security and Medicare, and the American Academy of Physical Medicine and Rehabilitation. The groups are seeking declaratory, injunctive and mandamus relief to terminate application of the Improvement Standard and to provide remedies to those illegally denied coverage.
The Improvement Standard's impact, the complaint states, "falls most heavily on patients with chronic conditions. As their health deteriorates their need for nursing services and physical, occupational, and speech therapies increases. The skilled care denied them under the Improvement Standard is critical to slow their disease process and to maintain their functional ability, yet these are precisely the patients who are most likely to have their coverage denied, terminated or reduced."
Lead plaintiff Glenda Jimmo, 71, has a number of disabling conditions for which her doctor prescribed intermittent skilled nursing and health aide services in her home. Ms. Jimmo's Medicare contractor denied coverage on the grounds that "[t]he likelihood of a change in the patient's condition requiring skilled nursing services was not supported by documentation." The decision was upheld on administrative appeals.
In December, the Center for Medicare Advocacy announced that on November 17, 2010, the Centers for Medicare & Medicaid Services (CMS) had issued new regulations regarding coverage for home health services clarifying that skilled care does include services that are intended to maintain a person's condition and that no "rules of thumb" should be used to deny care including rules that require restoration potential.
Nevertheless, Gill Deford, the Center's Director of Litigation, said such statements by CMS have proved to be of little import.
"[R]egulations have existed for years in this area that, by all appearances, preclude application of an Improvement Standard," Deford told ElderLawAnswers in an e-mail communication, "yet contractors and providers continue to apply such a standard and CMS continues to fail to stop them. The short of it is that the rules are there to prohibit an Improvement Standard, but CMS refuses, despite many advocates' efforts and a number of lawsuits over the years that have held against such a standard, to take effective enforcement action."
Deford said that if the court agrees and certifies a nationwide class, "a successful outcome on the merits would require CMS to enforce its rules against the Improvement Standard for everyone affected by it, now and in the future."
For a copy of the complaint, click here.
For an article on the lawsuit in the Los Angeles Times, click here.
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