Federal Judge Refuses to Dismiss Medicare Beneficiaries’ Challenge to the Medicare “Improvement Standard”

Plaintiffs in a lawsuit filed by the Center for Medicare Advocacy and Vermont Legal Aid on behalf of Medicare beneficiaries with long-term and chronic conditions have overcome a major hurdle.  In a comprehensive 35-page decision, a federal judge in Vermont refused the federal government's request to throw out a lawsuit that seeks to end use of an illegal "Improvement Standard" to deny Medicare coverage.  The Improvement Standard is a "rule of thumb" that Medicare uses to deny or terminate coverage to beneficiaries whose conditions are not improving.[1]

For decades, Medicare beneficiaries – particularly those with long-term or debilitating conditions and those who need rehabilitation services – have been denied necessary care based on the Improvement Standard.  This illegal practice means that Medicare coverage for vital care is denied to thousands of individuals on the grounds that their condition is stable, chronic, not improving, or that the necessary services are for "maintenance only."  The use of this illegal standard has a particularly devastating effect on patients with chronic conditions such as Multiple Sclerosis, Alzheimer's disease, ALS, Parkinson's disease and paralysis.  The lawsuit, Jimmo v. Sebelius, which was filed in January of this year, was brought on behalf of a nationwide class of Medicare beneficiaries by six individual beneficiaries and seven national organizations representing people with chronic conditions, challenges the use of an Improvement Standard.

In a Motion to Dismiss argued in July 2011, the government contended both that the court lacked jurisdiction over the plaintiffs' claims (for a variety of reasons) and that the plaintiffs had failed to state a claim for which relief could be granted.

In an order denying the Government's Motion to Dismiss, dated October 25, 2011, Chief Judge Christina Reiss of the U.S. District Court of Vermont rejected the assertion that there was no proof that the government was applying 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."

Judge Reiss did agree with the government that the court lacked jurisdiction over one beneficiary plaintiff and one organizational plaintiff, but the case will go forward with the remaining eleven plaintiffs. 

For more information about the Jimmo case, contact the Center for Medicare Advocacy's Litigation Director Gill Deford (gdeford@medicareadvocacy.org) in the Center's Connecticut office at (860) 456-7790.