In an Opinion and Order released on August 18, 2016, Chief Judge Christina Reiss, who oversees the “Improvement Standard” case (Jimmo v. Burwell, No. 11-cv-17 (D.Vt.)), ordered the federal government, through its Centers for Medicare & Medicaid Services (CMS), to comply with the Settlement Agreement that she had approved in January 2013. The Order requires CMS to remedy the Educational Campaign, which was a cornerstone of the Settlement Agreement, by “direct[ing] the Secretary [of Health and Human Services] to propose corrective action for Plaintiffs’ consideration within forty-five days of this Order.” The goal continues to be to end the practice of denying coverage to tens of thousands of Medicare beneficiaries by replacing the illegal “Improvement Standard” with a maintenance coverage standard. As the Court held: “Plaintiffs bargained for the accurate provision of information regarding the maintenance coverage standard and their rights under the Settlement Agreement would be meaningless without it.”
The Order granted in part a Motion for Enforcement filed on March 1 of this year after plaintiffs’ attorneys had been unable to persuade CMS to carry out corrective measures. “It was distressing that CMS refused to take further action in response to the obvious systemic problems that continued to harm this particularly vulnerable class of Medicare beneficiaries,” said Judith Stein, an attorney for the plaintiffs and the Executive Director of the Center for Medicare Advocacy. “Despite our repeated demonstrations that the word has not gotten out that people do not have to improve in order to obtain Medicare coverage for necessary care,” she added, “CMS took the position that it had done enough. We are relieved the Court has ordered CMS to do more to educate Medicare providers and decision-makers.”
Plaintiffs had consistently provided proof to CMS since January 2014 that the agency’s Educational Campaign had failed to communicate the necessary information to the providers and contractors that make the front-line decisions in the Medicare program. “I was baffled by CMS’ resistance,” said Michael Benvenuto, another of plaintiffs’ attorneys and the Director of the Medicare Advocacy Project of Vermont Legal Aid, “because even the sampling of decisions done by an independent contractor showed an error rate of over 40%. No matter what evidence we presented them, their response was always ‘We’ve done all we have to do.’”
Plaintiffs’ enforcement motion included 24 declarations from beneficiaries, family members, advocates, and officials of organizations dedicated to patients with chronic illnesses and injuries, and hundreds of pages of exhibits, to demonstrate the extent and ongoing nature of the problem. “Returning to court was certainly not the preferable way to go,” explained Gill Deford, also of the Center for Medicare Advocacy and lead counsel for the plaintiffs, “but CMS simply would not budge. We had to move for enforcement because there is no excuse for Medicare still using this illegal rule of thumb to deprive desperate beneficiaries of the care and services they need.”
The Court’s Opinion concluded that “at least some of the information provided by the Secretary in the Educational Campaign was inaccurate, nonresponsive, and failed to reflect the maintenance coverage standard,” citing as the “most compelling example … the Secretary’s ‘Summary of the questions posed and answers provided during the … National Call with contractors and adjudicators.’” CMS will thus have to develop “corrective action” for the inadequate education effort, and if the Plaintiffs are not satisfied with it and the parties cannot agree, they may return to the judge for a resolution.
Kim Calder, Director at the National Multiple Sclerosis Society, is gratified that CMS will provide more education. “Among the reasons the National Multiple Sclerosis Society is a Jimmo plaintiff and applauded the Settlement was the promise that Medicare would provide a nationwide education campaign so Medicare’s own administrators, health care professionals and the public would know that continued ‘improvement’ is not a requirement for coverage and payment,” said Calder. “Rehabilitation therapy is an integral part of MS treatment because it helps prevent declines in walking, moving, speaking and optimal functioning. Denying patients access to these treatments can lead to worsening disability, lack of independence and more expensive health care needs.”
The Center for Medicare Advocacy encourages people to appeal if told Medicare coverage is not available for skilled maintenance nursing or therapy because they are not improving. There is a great deal of information and self-help material on our Improvement Standard page, where beneficiaries can also obtain information with key provisions from the revised Medicare Manuals to show their health care providers.