Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert – Jimmo “Improvement Standard” News; Elder Justice Newsletter & More

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  1. Jimmo "Improvement Standard" News:
  1. Elder Justice Newsletter, March 2018
  2. You Guessed it… More Health Care Sabotage

Jimmo "Improvement Standard" News:

ALJ Rules Medicare Covers Outpatient therapy to Maintain Function, Indefinitely if Needed

A young man who suffered a traumatic brain injury (TBI) following a fall in 2008 was receiving outpatient physical therapy three times a week.  While his therapy was originally covered by his Medicare Advantage (MA) plan, the plan denied further coverage of his therapy, contending that the recovery period for TBI had passed and that a maintenance program at home or the gym could be implemented.  The denial was affirmed at the next level of appeal.  In a January 2018 decision, however, an Administrative Law Judge (ALJ) reversed the denials and issued a decision fully favorable to the beneficiary.[1]  The MA plan has now filed a notice of appeal with the Medicare Appeals Council.

Relying on Jimmo v. Sebelius,[2] the ALJ held that the plan cannot limit Medicare coverage to patients who are expected to recover in a reasonable period of time.  The factual issue is “whether the services are reasonable, effective treatments for the patient’s condition and require the skills of a therapist.  MBPM, Ch. 15, Sec. 220.2(c).”[3]  The ALJ gave great weight to the opinion of the treating physician as the person “in the best position to determine what treatments are medically necessary for his patient.”[4]  Both the therapist and the physician wrote letters describing in detail the patient’s specific need for therapy services.[5]  The therapist cited a published article finding that patients with brain injuries can continue to make gains many years after the injury.[6]

The ALJ noted that the Medicare Advantage physicians neither examined the beneficiary nor conducted any tests, “so therefore those physicians are not neutral uninterested witnesses.”[7]  Moreover, the physician testifying for the MA plan at the hearing “is actually a full time employee of [the MA plan provider] and he admitted that he had not reviewed all of the medical records, including all of the Physical Therapy notes prior to testifying at the hearing that the Enrollee only needed therapy visits once a month.”[8]

The Medicare Advantage plan initially denied the beneficiary’s pre-authorization request for therapy based on its view that the beneficiary did not require the skills of a therapist.  At the hearing, the MA plan’s representative testified that a change in coverage, effective January 2017, added a requirement of expected recovery.[9]  The ALJ ruled that this standard violates Jimmo and that the plan “does not place any limits on how many Physical Therapy visits an Enrollee may receive, nor does the Plan limit the dollar amount that can be paid for an Enrollee’s Physical Therapy.”[10]  Accordingly, based on both the Plan rules and Jimmo, the ALJ found that the young Medicare beneficiary could continue to receive therapy “indefinitely.”[11]

[1] https://www.medicareadvocacy.org/wp-content/uploads/2018/04/Jimmo-outpatient-therapy-managed-care-ALJ-decision-01.2018.pdf.
[2] No. 5-11-cv-00017-cr (D. Ct. Jan. 24, 2013).  See the Center for Medicare Advocacy’s materials on Jimmo at https://www.medicareadvocacy.org/?s=Jimmo&op.x=0&op.y=0
[3] Decision 9.
[4] Id. 9-10.
[5] Id. 2-3, ¶¶3, 6.
[6] Id. 3, ¶5.
[7] Id. 9.
[8] Id.
[9] Id. 8.
[10] Id. 9. 
[11] Id. 10.

 

 

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New Fact Sheet: Skilled Nursing Facility Coverage and Jimmo v. Sebelius

With support from the John A. Hartford Foundation, the Center for Medicare Advocacy provides the following Fact Sheet to help Medicare nursing home beneficiaries and their families respond to unfair Medicare denials based on an erroneous “Improvement Standard.” The Fact Sheet emphasizes language from the Jimmo Settlement Agreement, wherein the Centers for Medicare & Medicaid Services (CMS) agreed to revise the Medicare Benefit Policy Manual to clearly disavow any notion that a resident of a skilled nursing facility must improve in order for his or her skilled nursing or skilled therapy services to be covered by Medicare.  Skilled nursing and therapy are Medicare-covered services.

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Elder Justice Newsletter, March 2018

Elder Justice: What "No Harm" Really Means for Residents is a monthly newsletter published by the Center for Medicare Advocacy and the Long Term Care Community Coalition. The purpose of the newsletter is to provide residents, families, friends, and advocates information on what exactly a "no harm” deficiency is and what it means to residents.

This issue provides real stories of resident harm from Michigan, New York, Florida, and Idaho. Some examples of resident harm from this issue include a facility’s failure to develop a baseline care plan, which resulted in improper catheter use and “bright red blood on the resident’s genitals,” and another facility’s failure to provide psychiatric services to a resident who claimed battery acid was being poured onto his leg. Each of the “no harm” deficiencies highlighted in this month’s newsletter relates to one of the standards for which CMS announced it is delaying complete enforcement.  

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You Guessed it… More Health Care Sabotage

This week CMS released the Final Enrollment Report for the 2018 Health Insurance Exchanges. The report showed that in spite of attempts by the Administration to undermine the Affordable Care Act (ACA) and sabotage our health care system, nearly 11.8 million people “selected or were automatically re-enrolled in an Exchange plan…” Bizarrely, the Administration seems to take credit for the success of 2018 Open Enrollment period. CMS’ press release calls it the “agency’s most cost effective and successful open enrollment to date.” CMS Administrator Seema Verma went on to say “However, even with the success of this year’s open enrollment, the individual market continues to see premiums rise and choices diminish.” We have previously highlighted actions taken by the Administration that caused instability in the Marketplace and helped inflate premiums. Just last week, it was reported that due to Administration and Congressional failure to stabilize the Marketplace, the repeal of the individual mandate, and proposals to allow short-term plans, insurers are preparing (once again) for double-digit rate increases. It is time for the Administration to take responsibility for their role in undermining the Marketplace.

If this was, as CMS called it, “the most successful open enrollment to date” it was despite the Administration, not because of it.  Many organizations and individuals spread the word and helped consumers get covered, with minimal assistance from the Administration. For months, the Center has highlighted the roadblocks the Administration put up, such as cutting the enrollment period in half; slashing funding for enrollment assistance and advertising; refusing to participate in enrollment events; shutting down healthcare.gov during critical times; and issuing regulations to allow the sale of “junk” plans. The “junk plans” are especially troubling as they will undermine benefits, erode ACA coverage protections and further inflate costs. Even the ability to access basic information about ACA benefits is being undermined. For example, the Sunlight Foundation’s Web Integrity Project issued a report this week showing that information about ACA coverage of mammograms has been removed from WomensHealth.gov.

The Administration has waged an attack on the ACA, an attack on health care rights and an attack on coverage for consumers who need care the most. Fortunately, Kaiser Health released data this week showing that ninety percent of individual market adult consumers say they still plan to buy coverage next year. This was even after they were told the individual mandate has been repealed. The Kaiser data is further evidence that Americans value access to quality health coverage.  Attempts to undermine this coverage must end.

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