EDITOR’S NOTE: Nancy Beckley served as an invited member of the Jimmo Implementation Counsel convened by the Center for Medicare Advocacy.
The therapy community, as well as those providing medically necessary skilled maintenance, now have a centralized online resource for information on the Jimmo v. Sebelius Settlement.
The Centers for Medicare & Medicaid Services (CMS) had signaled earlier this month that it was nearing the launch of the court-ordered web page, and by yesterday it was live and (https://www.cms.gov/Center/Special-Topic/Jimmo-Center.html) open for business.
CMS provided the opening message on the page:
“The Centers for Medicare & Medicaid Services (CMS) reminds the Medicare community of the Jimmo Settlement Agreement (January 2013), which clarified that the Medicare program covers skilled nursing care and skilled therapy services under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits when a beneficiary needs skilled care in order to maintain function or to prevent slow decline or deterioration (provided all other coverage criteria are met).”
CMS further explains that the Jimmo agreement “may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve.” In the therapy community, this is widely known at the “improvement standard.”
The Original Case
The Center for Medicare Advocacy and Vermont Legal Aid, on behalf of multiple beneficiary plaintiffs and multiple national organization plaintiffs, filed suit against the Secretary of the U.S. Department of Health and Human Services in 2011, seeking declaratory and injunctive relief prohibiting the continued application of the improvement standard and review of the cases of class members and beneficiary plaintiffs. (No.11-cv (D.Vt.)
A proposed settlement agreement was filed with the court in 2012, and it included certification of a nationwide class, a revision of relevant portions of the Medicare Benefit Policy Manual, requirements for CMS to conduct a nationwide educational campaign, random samplings of Qualified Independent Contractor (QIC) decisions to determine if policy was followed, and court jurisdiction for up to two to three years following the educational campaign.
Back to Court
By the fall of 2013, CMS had submitted proposed manual changes to the plaintiffs, and on Dec. 9, 2013, the manual changes were published. Over the course of 2014, the plaintiffs continued to ask for further information to be posted to the CMS website, including much-needed responses to frequently asked questions. Additionally, the plaintiffs asked for further clarification in the Medicare Benefits Policy Manual.
Therapy providers eager to provide medically necessary skilled therapy, including medically necessary skilled maintenance therapy, while elated over the decision, had two significant problems facing them:
- The Medicare appeals backlog, largely a function of the Recovery Audit Contractor (RAC) program, was dramatically peaking by 2014 – so any “testing” of adjudication of therapy claims, applying the mythical improvement standard, would likely not be heard until after the time of the court’s oversight. There simply wasn’t a chance for therapy providers to test the efficacy of the new program (well, not really new, but newly enforced), which left the Center for Medicare Advocacy appealing to therapy providers to provide cases that they could take to the court-mandated meetings with CMS during the period of the court’s oversight.
- Therapy providers, whether in home health, outpatient, or skilled nursing settings, were often reluctant to provide medically necessary skilled therapy due to the constraints of the therapy caps, and more importantly due to the CMS-mandated manual medical review of therapy claims over $3,700 (which, in the eyes of the therapy constituency groups, was inadequately handled by the RACs).
The plaintiffs were back in court (Jimmo v. Burwell) in 2016, wherein the judge ordered the federal government (CMS) to comply with the originally approved settlement that was approved in 2013. The order required CMS to remedy the inadequate educational campaign, a central element of the settlement agreement.
A Feb. 2, 2017 ruling started the process over again, with the judge ruling that a corrective action plan will include a new CMS webpage dedicated to Jimmo, a published corrective statement disavowing the improvement standard, a posting of frequently asked questions (FAQs), and new training for contractors making coverage decisions. In addition, and significantly, the court largely adopted the corrective statement drafted by plaintiffs and ordered the Secretary to conduct a new national call to explain the correct policy.
Now that the CMS dedicated Jimmo website is posted, a statement disavowing the improvement standard is prominent, and an updated FAQ document is posted, what is next? The contractors adjudicating claims must be trained, as well as another national call held – explaining, yet again, the correct policy.
There is still no improvement standard.
And yes, it’s official, yet again.