[This article was originally published on October 28, 2011. The links were updated on August 24, 2018.]
A U.S. district court judge in Vermont has denied the federal government's motion to dismiss a nationwide class action lawsuit that seeks to end use of the "Improvement Standard" as a reason to terminate Medicare skilled nursing coverage when a beneficiary ceases to show progress. Jimmo v. Sebelius (D. Vt., Civil No. 5:11-CV-17, Oct. 25, 2011).
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 charged 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.
The Center for Medicare Advocacy and Vermont Legal Aid filed the lawsuit 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 theAmericanAcademy of Physical Medicine and Rehabilitation.
In its motion to dismiss, the government contended that the court lacked jurisdiction over the plaintiffs' claims and that the plaintiffs had failed to state a claim for which relief could be granted.
In an order denying the motion dated October 25, 2011, the U.S. District Court of Vermont rejects the government's assertion that there is no proof that the government applies such a policy as the Improvement Standard. "The court cannot conclude as a matter of law that Plaintiffs' Improvement Standard theory is factually implausible when it is supported by at least some evidence in each of the Individual Plaintiffs' cases and where other plaintiffs have successfully demonstrated the use of illegal presumptions and rules of thumb much like Plaintiffs allege here," the court writes. The court did agree that it lacked jurisdiction over one beneficiary plaintiff and one organizational plaintiff, but the case will proceed with the remaining plaintiffs.
When the lawsuit was filed earlier this year, Gill Deford, the Center for Medicare Advocay's Director of Litigation, told ElderLawAnswers that "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 more from the Center about the Improvement Standard and the Jimmo case, click here.
For a copy of the complaint in Jimmo, click here.
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