- GUEST POST: Jimmo Enforced, Preventive & Maintenance Therapy Affirmed
- Courts Order Preliminary Injunctions Against Vaccination Mandate for Medicare and Medicaid Providers and Suppliers
- Report: Telehealth Use by Medicare Beneficiaries Increases Over 6,000% in 2020
- UPDATED | COVID-19: An Advocates Guide to Beneficiary Related Medicare Changes
By John Marmarou, DPT, MSCS – Executive Director, Total Rehab & Fitness
For the last 15 years, all of my professional work and efforts have been devoted to keeping those with multiple sclerosis (MS) in their communities and out of the hospital. I am a doctor of physical therapy, MS specialist and an executive director. I oversee two very effective programs that specialize in the treatment for those with MS. Early in the development of these programs, I made the difficult decision to stop discharging patients prematurely due to insurance restrictions. This was a very promising decision, as our patients would usually decline after discharge. Taking this new approach, our patients were getting better or not regressing at such a rapid pace. This new way of practicing was difficult at times. Often, we were not being reimbursed for the vital services that we were providing.
After the Jimmo ruling in 2013, we would now be reimbursed for the pro-bono work we had been performing. But in 2016, Medicare auditors began aggressively targeting our practices. These auditors claimed that our patients, with progressive MS, did not need skilled services to prevent further decline or to make gains. In one instance, an auditor who was a physician, suggested that our patients could simply go to a fitness center. Reasoning behind this aggressive campaign seemed removed from reality at times. We felt like Cinderella, in the sense that we were working very hard to keep Medicare beneficiaries out of the hospital. We were saving Medicare money and resources. Yet we were being viewed as bad actors doing something wrong just because we were following Jimmo, which is the law of the land. These aggressive efforts went on until recently. Two major audits, one that went all the way to an Administrative Law Judge (ALJ) and the other that went to a Qualified Independent Contractor (QIC), were both overturned. Almost 100% of the findings were in our favor. Jimmo was finally recognized, after 5 years of fighting audits that had unreasonable and preposterous justification.
The findings of the ALJ and QIC are bigger than our practices and patients alone. It sets precedent and establishes a path for more therapists to use Jimmo in the way that it was intended. Rehospitalization for those with chronic illness is very costly for Medicare. Now there is an opportunity for therapists to develop new models of care that take the burden away from the acute-healthcare-system, potentially breaking the cycle of rehospitalizations for these vulnerable populations. Since these rulings have come back in our favor, myself and my staff can focus on keeping our patients safely in their homes and communities. The Jimmo ruling is profound for many reasons. One, is that it gives therapists the necessary time to stabilize very sick patients. Another reason, is that it allows those treating therapists to continue with their care in an effort to prevent further decline. These patients are very vulnerable and many are not able to maintain gains achieved without their therapy teams.
Now that we have established the medical necessity of the care we provide, we can start to imagine the possibilities the Jimmo ruling may allow. Can Jimmo set a path for physical therapists or other therapy disciplines to act as primary caregiver for patients with chronic illness? Does the Jimmo ruling allow therapists to, over time, develop a new healthcare setting with a primary focus of keeping patients out of the hospital and in turn significantly decreasing hospital readmissions? Could the Jimmo ruling be part of the solution to help CMS address the insolvency it faces? These are all questions myself and my team can begin to think about and potentially answer. Only time will tell, but after 5 years of battling with the nonsensical nature of these auditors, the future is bright and exciting for my team but more importantly, for our patients. My hope is that other caregivers in our position will utilize Jimmo in the way it was intended.
Courts Order Preliminary Injunctions Against Vaccination Mandate for Medicare and Medicaid Providers and Suppliers
In an interim final rule with comment published November 5, 2021, the Centers for Medicare & Medicaid Services (CMS) required 21 specified Medicare- and Medicaid-certified providers and suppliers to require their staff to receive the first dose of a two-dose COVID-19 vaccine or a one-dose vaccine by December 5, 2021 and to be fully vaccinated for COVID-19 by January 4, 2022. Attorneys General in four states filed federal lawsuits challenging the mandate on behalf of a total of 24 states. The two cases filed by Missouri and Louisiana resulted in preliminary injunctions, now covering the entire country. The Biden Administration suspended enforcement of the vaccination mandate “so long as court-ordered injunctions remain in effect.”
The Missouri Attorney General filed the first lawsuit, on November 10, on behalf of Missouri and nine other states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming). Issuing a preliminary injunction for only those 10 states on November 29, Federal District Court Judge Matthew T. Schelp ruled that (1) Congress did not grant CMS authority to mandate vaccinations, (2) CMS “improperly bypassed notice and comment requirements” of the Administrative Procedure Act and the Social Security Act; and (3) the mandate was arbitrary and capricious.
In a news release announcing the Louisiana case, filed November 15 on behalf of Louisiana and 11 other states (Alabama, Arizona, Georgia, Idaho, Indiana, Mississippi, Montana, Oklahoma, South Carolina, Utah, and West Virginia), Louisiana Attorney General Jeff Landry said:
“Biden’s bureaucrats at CMS are threatening the jobs of millions of our healthcare heroes who risked their lives last year caring for our neighbors with COVID-19. What’s more: the mandate once again gives more rights and protections to illegal aliens than American citizens. The federal government will not impose medical tyranny on Louisiana’s people without my best fight.”
Issuing a preliminary injunction on November 30 for the states not already covered by the Missouri injunction, Federal District Court Judge Terry A. Doughty ruled for the states on all of their legal theories except the Anti-Commandeering Doctrine. He held (1) CMS did not demonstrate a good cause exception to notice and comment rulemaking required by the Administrative Procedure Act; (2) there was a violation of separation of powers (the law does not “give the Government Defendants the ‘superpowers’ they claim”); (3) CMS failed to comply with federal statutory provisions requiring consultation with state agencies and prohibiting supervision and control over the practice of medicine; (4) the CMS action was arbitrary and capricious; and (5) CMS violated States’ police power, the Spending Clause, and the Tenth Amendment.
Florida filed its case on November 17 solely on its own behalf. The Attorney General said:
“Seeing his job approval ratings plummet and losing control of the media narrative, President Biden, who once lauded these medical professionals as heroes sacrificing their safety to save Americans from COVID, now abandons them in a feeble attempt to score political points at the worst possible time—making another disastrous policy decision based on politics just as pandemic burnout is thinning our health care ranks and creating a dire staffing shortage.”
“Fortunately, the law is on our side and Florida has an Attorney General who is not afraid to push back against unlawful federal overreach. I filed a challenge to end the CMS vaccine rule—to protect doctors, nurses and other medical professionals, as well as the stability of the entire health care industry, against this power-hungry administration’s unlawful mandate that forces Floridians to choose between providing for their families and their health care autonomy.”
On November 20, in the first federal court ruling on the vaccination mandate, Federal District Court Judge M. Casey Rodgers denied the state preliminary injunctive relief, finding that the State had not shown irreparable injury prior to December 6.
A Texas lawsuit, filed November 15 and asserting similar theories to the other cases, is pending. In a Press Release announcing the lawsuit, State Attorney General Ken Paxton said:
“At a time when we need healthcare workers more than ever before, amid a harrowing worker shortage, the Biden Administration has prioritized this unlawful vaccine mandate over the healthcare of all Americans. We need healthcare workers, regardless of their vaccination status, and this decision puts us on track for an impending disaster within the healthcare industry.”
The American Health Care Association (AHCA) released a statement about the injunction issued in Louisiana. AHCA expresses appreciation for the injunction and simultaneously reiterates its support for vaccinations for “as many residents and staff as possible.” AHCA’s president and CEO Mark Parkinson expresses “deep concern[…] that the current mandate issued by CMS will cause nursing homes to lose staff at a time when we are already grappling with a historic labor crisis.” AHCA calls for “a regular testing option for unvaccinated staff.”
 CMS, “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” 86 Fed. Reg. 61555 (Nov. 5, 2021), https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23831.pdf
 CMS, “Vaccination Regulation: Enforcement of Rule Imposing Vaccine Requirement for Health Care Staff in Medicare- and Medicaid-certified Providers and Suppliers is Suspended so Long as Court Ordered Injunctions Remain in Effect,” QSO-22-04-ALL (Dec. 2, 2021), https://www.cms.gov/files/document/qso-22-04-all.pdf
 State of Missouri v. Joseph R. Biden, Jr., et al, Case No. 4:21-cv-01329-MTS (E.D. Mo. Nov. 29, 2021), https://ago.mo.gov/docs/default-source/press-releases/cms-injunction.pdf?sfvrsn=ed822d9d_2
 Attorney General Jeff Landry, “Biden Attempts To Turn Last Year’s Healthcare Heroes Into This Year’s Unemployed, Attorney General Jeff Landry Fights Back” (News Release, Nov. 15, 2021), https://agjefflandry.com/Article/12978
 Attorney General Ashley Moody, “Attorney General Moody Challenges Unlawful Vaccine Mandate Threatening to Exacerbate Health Care Worker Shortage Crisis” (News Release, Nov. 18, 2021), http://www.myfloridalegal.com/newsrel.nsf/newsreleases/C9F27051EC65B86D852587910059F8C1?Open&
 State of Florida v. Department of Health and Human Services, et al, Case No. 3:21-cv-2722 (N.D. FL, Nov. 20, 2021), https://affordablecareactlitigation.files.wordpress.com/2021/11/fl-v-cms-order-denying-pi-11-20.pdf
 State of Texas v. Becerra, et al, Case No. ____ (N.D. Tex. Filed Nov. 15, 2021), https://www.texasattorneygeneral.gov/sites/default/files/global/images/20211115%20001%20Original%20Complaint.pdf
 “Paxton Files Lawsuit Against Biden Administration’s Vaccine Mandate for Healthcare Workers” (Press Release, Nov. 15, 2021), https://www.texasattorneygeneral.gov/news/releases/paxton-files-lawsuit-against-biden-administrations-vaccine-mandate-healthcare-workers
 AHCA, “AHCA, NCAL Release Statement on Vaccine Mandate Injunction” (Dec. 1, 2021), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCA-Releases-Statement-on-Vaccine-Mandate-Injunction.aspx
In March 2020, the Centers for Medicare & Medicaid Services (CMS) increased access to Medicare telehealth services with the aim of reducing travel that beneficiaries would have to make in order to get to in-person doctor visits and, therefore, also potentially decreasing exposure to COVID-19. CMS expanded regulatory flexibilities and the range of providers that could be reimbursed for services. A report just released by the Assistant Secretary for Planning and Evaluation (ASPE) shows that the number of Medicare beneficiary telehealth visits increased from 840,000 in 2019 to almost 52.7M in 2020, amounting to a 63 fold increase.
In 2019, before the Medicare telehealth waivers were implemented due to the COVID-19 public health emergency (PHE), there were geographic limitations on telehealth. Only Medicare beneficiaries living in rural areas were eligible for these services. In response to the PHE, Medicare allowed telehealth services to be available nationwide – no matter if the beneficiary lives in a rural or urban environment. The ASPE report shows that the highest rates of telehealth use in 2020 “shifted into more urban states, with the highest rates of telehealth in the Northeast and in the West (particularly) California.” Furthermore, behavioral health visits, such as general psychiatrists, psychologists, and licensed clinical social workers, showed the largest increase, with 38% of all visits these providers delivered occurring through telehealth (up from 1% in 2019).
At the time that the telehealth waivers were implemented by CMS, the Center issued a set of principles – in conjunction with the Medicare Rights Center – providing guidelines on how to proceed with Medicare coverage of telehealth while safeguarding the health and well-being of beneficiaries. One of those principles discussed ensuring “equitable access to telehealth for underserved communities, including Black Americans and people of color, individuals with disabilities, and people with limited English proficiency.”
The ASPE report showed mixed results on racial disparities in accessing telehealth in 2020. There was a lower share of Black beneficiaries that utilized telehealth compared to Whites. The Hispanic and Asian populations, however, had a higher share of telehealth use. The Center will be releasing an in-depth Telehealth report shortly. The report, led by our Chiplin Fellow, Cinnamon St. John, will examine gaps that currently exist in accessibility, along with infrastructure needs that should be addressed by lawmakers to ensure that all Americans have equal access to the advantages and opportunities telehealth provides.
 CMS. Medicare Telemedicine Health Care Provider Fact Sheet. CMS. (March 17, 2020). Available at: https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.
 Wong Samson, L., Tarazi, W., Turrini, G., & Sheingold, S. Medicare Beneficiaries’ Use of Telehealth in 2020: Trends by Beneficiary Characteristics and Location. ASPE. (December 3, 2021). Available at: https://aspe.hhs.gov/reports/medicare-beneficiaries-use-telehealth-2020.
 CMA, & Medicare Rights Center. (2020, July 23). Telehealth – Recognize the Benefits, But Proceed with Caution. Center for Medicare Advocacy. Retrieved December 6, 2021, from https://medicareadvocacy.org/joint-principles-from-center-for-medicare-advocacy-and-medicare-rights-center-medicare-expansion-of-telehealth-helps-beneficiaries-access-care-during-the-pandemic-but-caution-is-needed-bef/.
The global COVID-19 crisis has led to many changes in health care rules, including in the Medicare program. Most of the Medicare changes are slated to be temporary, but advocates will need to watch which provisions do and do not remain after the crisis. While many of the changes affect health care providers, including payment and waivers of certain requirements, our Advocates Guide, Updated November 9, 2021, focuses on Medicare COVID changes that relate to beneficiaries and their access to covered care. Note: This Advocates Guide describes, but does not analyze or critique these changes.