The Center for Medicare Advocacy, with support from The John A. Hartford Foundation, brought together a multidisciplinary team of experts for the third Jimmo Council meeting on June 16, 2021. The meeting, led by the Center’s Executive Director Judy Stein, included physical therapist Cindy Krafft, nurse practitioner Laura Darden, and attorneys Kelly Sarama and Lindsay Heckler to discuss best practices, problems, and possible solutions for the implementation of Jimmo.
Ms. Stein began the presentation with an expectant call to action to the Administration and the Centers for Medicare & Medicaid Services (CMS). “I’m hoping that we can make some of the problems with implementation that you’ve experienced either disappear or be manageable so people can get access to the care they need.”
Jimmo v. Sebelius: Overview
The Center for Medicare Advocacy and Vermont Legal Aid filed the class action lawsuit on January 18, 2011 on behalf of five Medicare beneficiaries – including Glenda Jimmo from Lincoln, Vermont – and six national organizations representing people with chronic conditions. The purpose of the lawsuit was to eliminate the improvement standard in skilled nursing facilities (SNFs), home health (HH), outpatient therapy (OPT), and to an extent Inpatient Rehabilitation Facilities (IRFs).
As a lead attorney for the plaintiffs, Judy Stein explained, “The law was on our side. But, nonetheless, we were seeing an increasing number of denials, on the grounds that people were not improving or not improving fast enough. And that care was not skilled because it was being used to slow deterioration or preserve capabilities. Something had to be done. The law was not being followed.”
The federal regulation (42 C.F.R. §409.32(c)) Ms. Stein referenced states: “Restoration potential is not the deciding factor in determining whether skilled care is required. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.”
A settlement was approved by the Court in 2013.
Meaning and Application of the Jimmo Settlement
The key to Jimmo is that Medicare coverage depends on whether “skilled” care is required. This means coverage is based on the person’s individualized needs and care requirements rather than the determination of the care outcomes. The individual’s restoration potential (expectation to improve) should not be the determinative factor.
Ms. Stein further explained that services can be skilled and covered when: (1) they are needed to maintain, prevent, or slow decline or deterioration; (2) when a skilled professional is needed to provide or supervise to ensure services are safe and effective.
In determining whether an individual gets Medicare coverage, an individualized assessment must be performed. The assessment must consider the totality of the person’s condition, along with their unique needs. It should not be based on a general rule of thumb about how other people with similar conditions do, or what others need. Additionally, the assessment must be made without regard to whether the illness or injury is acute, chronic, terminal, or expected to last a long time. (See: 42 CFR §409.44(b)(3)(iii)).
The treatment must be medically necessary, and it must be documented, meaning that the need for and receipt of skilled care must be evident, and it must show that the care was skilled. “Documentation is key,” stressed Ms. Stein, “If it is not in the documentation, it might have just as well not happened.” Without this documentation, the benefits of Jimmo might not stand. According to Ms. Stein, “Advocates cannot after the fact succeed in an appeal or convince a provider if the documentation doesn’t show that the service was provided, why it was provided, and what the outcomes seem to be.”
In 2017, a judge issued a Corrective Action Plan, requiring information about Jimmo to be on Medicare’s website, CMS.gov. Additionally, the court approved wording of a statement to be used by CMS disavowing the use of an Improvement Standard. That language can be used in an electronic claim to show the contractor to prove rights provided by Jimmo.
Call Maintenance Therapy What It Really Is – Maintenance Therapy
Physical Therapist and owner of Kornetti & Krafft Health Care Solutions, Cindy Krafft, began her presentation explaining that physical therapists are in a tough spot regarding maintenance therapy because the culture of therapy is steeped in the standard of improvement.
“In our educational programs, the mantra was ‘We need people to improve,’” Ms. Krafft stated. “If I am unable to improve the life of the beneficiary or if I reach a plateau, and can no longer improve it, then I am obligated as a good, diligent therapist to discharge them.”
Ms. Krafft pointed out that there is a difference between the regulatory language around Jimmo and its real-world application. She said, “What we have to think about is, ‘How does this really work?’”
According to Ms. Krafft, two specific points require close attention: coverage criteria and conditions for coverage. “There are specific coverage criteria.” Ms. Krafft stated, “if you’re going to receive skilled therapy in any post-acute settings, first, they have to qualify for services in that setting.”
Once the individual is qualified for the particular care setting, Ms. Krafft explained that there are three buckets of physical therapy conditions that are eligible for Medicare coverage: (1) restoration of function, (2) establishing and periodically reevaluating a patient-focused maintenance program, and (3) when the care required must be provided by a therapist (and only a therapist).
The first bucket – restoration of function – tends to be the “therapy comfort zone”, while all other eligible conditions are centered around maintenance therapy. “The problem is we don’t really notice that two-thirds of the benefit speaks to a maintenance approach to care,” Ms. Krafft explained, and this maintenance can be complex.
Looking at the second bucket – establishing and periodically reevaluating a patient-focused maintenance program – Krafft pointed out that “there is skill in modifying the program to fit the changing situation of this patient.” For the third bucket, meanwhile – when the needs of the beneficiary, the nature of the condition and/or the complexity of the therapy program require a therapist (and only a therapist) to provide the care – “the documentation expectations are very high” Ms. Krafft warned.
In summary, Ms. Krafft appealed to rehab therapists: “We need to make sure that we become comfortable in this space, that we challenge ourselves about our value in this particular aspect of patient care, and that we advocate for our beneficiaries as much as possible in making sure that we’re able to articulate clearly our value in the stabilization of function.”
Role of Nursing in Jimmo: Assessment and Care Plan
Acute Care Nurse Practitioner Laura Darden began her presentation by grounding it in the Nurse Practice Act (NPA), which are laws and regulations by which nurses must abide. Each state interprets the NPA into its own regulations, so those regulations may vary by state. The basis of the NPA is the nurse’s ability to assess a patient’s health condition.
Ms. Darden explained that nurses have a role in maintaining a patient’s level of function through assessment and slowing decline by developing a plan of care. Finally, the nurse must ensure that the plan of care is carried out “safely and effectively” through documentation.
The assessment process covers a broad spectrum of areas that impact a patient’s ability to function – ranging from physical to mental conditions (including the ability of a patient to understand information provided), to potential hazards in the home (home health care settings). “If we generate a plan of care,” Ms. Darden said, “and the patient can’t understand your directions, that’s going to compromise their ability to meet goals.”
The nurse is also responsible for maintaining and updating the patient’s care plan, through iterative evaluation, assessment, nursing diagnosis, goal setting, and intervention. “Consider the care plan as a dynamic piece of information,” Ms. Darden explained. “When you revisit it, you can revise goals or make a notation when goals are met. The key is to be as specific as possible.”
According to Ms. Darden, the role of the nurse should be to go into a situation with a patient, make an excellent plan of care, and then regularly evaluate whether goals are being met. The key is always to create documentation that is accurate, legible, and concise. “When you document,” said Ms. Darden, “you are basically showing what was done for a patient, what you listened to, subjective and objective findings, anything that should happen between visits, and what progress the patient has made in response to interventions.”
Partnership Activities: Long-Term Care Ombudsman, Advocacy, and Legal Services
Attorneys Lindsay Heckler and Kelly Sarama, with the Center for Elder Law & Justice (CELJ), a non-profit civil legal services agency, discussed the partnership between Legal Services and the Long-Term Care (LTC) Ombudsman Program in Buffalo, New York. According to Ms. Heckler, the partnership, which began in 2016, was developed to “create a more holistic approach to advocacy for those who live in nursing homes.”
As “Legal Liaison”, Ms. Heckler is a certified ombudsman and helps navigate the nursing home resident between the LTC Ombudsman Program and CELJ. The LTC Ombudsman Program provides the resident advocacy, such as care planning, while CELJ provides legal representation for medical appeals when necessary. Additionally, Ms. Heckler trains volunteer and staff ombudsman on what Jimmo is and how to spot issues around it, along with other legal issues, while also providing in-house legal support for the ombudsman program.
An important part of “issue spotting”, according to Ms. Heckler, is training the volunteer and staff ombudsman who are working with nursing home residents to ask basic questions to clarify and identify issues. Ms. Heckler shared that an example question for the resident will be: “Are you being terminated from Medicare or a therapy program or are you being discharged from the facility?”
If a Medicare appeal is necessary, the ombudsman will seek permission from the resident to speak with Ms. Heckler. “It was through our very targeted outreach efforts working with the ombudsman program that we were able to increase the amount of folks CELJ was able to provide legal services to.”
The number of cases, according to attorney Kelly Sarama, has jumped from 71 cases in 2015 to 300 cases in 2020. Ms. Sarama is part of CELJ’s Health Care Advocacy Unit, which provides general counsel and answers questions that volunteer ombudsman may have about Jimmo. The unit also represents people in Medicare appeals and advocacy.
In her work with Medicare appeals, Ms. Sarama reflected, “There is still a disconnect. Folks that need continued services are still being terminated.” She provided tips on building strong evidence to support continued skilled nursing and therapy, the basis of which is built upon medical documentation. Ms. Sarama pointed out that in the appeals process, the administrative law judge will only have data up to the resident’s termination date. This means that it is the resident’s advocacy team that will need to fill the gap with medical records from the date of termination through the date that individual is seeking coverage. “When you don’t have things documented, it can make the case fail,” Ms. Sarama noted. “That’s one big takeaway you have – every branch of this tree requires good documentation.”
Ms. Sarama ended her presentation with a call to action for those attending the council meeting to think about how different community partners can work together to ensure that people are educated about Jimmo.
Overall, the Jimmo Council discussion highlighted that, while much progress has been made in educating providers and patients about the rights confirmed through the Jimmo Settlement, there is more work to be done. We must advance the rights of beneficiaries to obtain necessary, Medicare-covered, care to maintain or slow decline of their conditions through collective action. While we have a long way to go, we are dedicated to ensuring Jimmo is properly implemented.
Please send your stories regarding problems or successes implementing Jimmo to the Center for Medicare Advocacy at Improvement@MedicareAdvocacy.org
The Center for Medicare Advocacy thanks the Jimmo Council attendees, presenters, and the John A. Hartford Foundation for its generous support.