CMS Joins the Center for Medicare Advocacy to Advance Access to Medicare-Covered Skilled Care to Maintain One’s Condition or Slow Decline
In 2011, the Center for Medicare Advocacy and Vermont Legal Aid brought the Jimmo v. Sebelius class action lawsuit on behalf of beneficiaries throughout the country who were denied Medicare coverage for skilled care because they were not improving. In 2013, the federal district court approved a settlement agreement with the Medicare agency, the Centers for Medicare & Medicaid Services (CMS). The Settlement confirmed that access to Medicare coverage should be determined based on the beneficiary’s need for skilled care, not potential for improvement. Specifically, the Settlement concluded that Medicare covers skilled care to maintain an individual’s condition or slow decline. This standard applies to home health care, nursing home care, outpatient therapies, and, to a certain extent, for care in Inpatient Rehabilitation Facilities/Hospitals.
To comply with a later court-directed Corrective Action Plan, CMS created a dedicated Jimmo section on its website, updated its policy manuals, and issued notifications such as this CMS Transmittal for the Medicare Manual revisions. Unfortunately, despite these efforts, beneficiaries in need of skilled nursing and/or therapy are still regularly denied Medicare-covered care by providers and adjudicators based on the erroneous Improvement Standard.
In December 2023, the Center for Medicare Advocacy met with CMS, seeking to jointly implement the Jimmo rulings and advance beneficiaries’ access to Medicare coverage for skilled nursing and therapy to maintain their conditions. The Center for Medicare Advocacy is delighted to report that CMS has taken significant steps to do just that.
As CMS stated in correspondence to the Center (2/13/2023):
We agree it is valuable to remind our contractors, plans and the provider community how the Jimmo Settlement Agreement clarified Medicare’s policy that coverage of skilled nursing and skilled therapy services in the Skilled Nursing Facility (SNF), Home Health (HH), and Outpatient Therapy (OPT) settings does not turn on the presence or absence of a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care. As such, we have recently issued the following reminders, which provided a link to our Jimmo Settlement webpage https://www.cms.gov/Center/Special-Topic/Jimmo-Center.html, highlighted the educational resources available, provided links to applicable Medicare policies, and provided directives to conduct staff and provider training, as applicable.
On February 13, 2024, CMS issued several important reminders to providers and adjudicators in traditional Medicare and Medicare Advantage to refresh and train staff and contractors. with links to their Jimmo Settlement page. These include:
- A Technical Direction Letter (TDL) released on 1/25/24, directing the Part A and Part B Qualified Independent Contractors (QICs), and the Part C Independent Review Entity (IRE) to conduct staff training on the coverage and payment policies related to skilled therapy pursuant to the Jimmo Settlement Agreement, and providing links to materials for use in conducting the training.
- A separate TDL issued on 2/7/24 directing the Medicare Administrative Contractors (MACs) to conduct staff training on the coverage and payment policies related to skilled therapy pursuant to the Jimmo Settlement Agreement, including links to materials for use in conducting staff training and provider education.
- A Jimmo Settlement Agreement reminder for health care providers in the Medicare Learning Network (MLN) Connects Newsletter of 2/8/24.
- A Health Plan Management System (HPMS) memo issued on 2/13/24 directing Medicare Advantage Organizations (MAOs) to conduct staff and contracted provider training on the coverage and payment policies related to skilled therapy pursuant to the Jimmo Settlement Agreement, including links to materials for use in conducting the training.
- In addition, CMS shared the direction provided to contractors with the Center for Program Integrity (CPI), the Office of Legislation (OL), the Office of Medicare Hearings and Appeals (OMHA), and the Office of Inspector General (OIG).
CMS included the following language in all its February 2024 reminders:
Specifically, the Jimmo Settlement required manual revisions to restate a “maintenance coverage standard” for both skilled nursing and therapy services under these benefits:
- Skilled nursing services are covered where such skilled nursing services are necessary to maintain the patient’s current condition or prevent or slow further deterioration, so long as the beneficiary requires skilled care for the services to be safely and effectively provided.
- Skilled therapy services are covered when an individualized assessment of the patient’s clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist (“skilled care”) are necessary for the performance of a safe and effective maintenance program. Such a maintenance program to maintain the patient’s current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program. (Emphasis added.)
Conclusion
The Center for Medicare Advocacy is grateful to CMS and its Medicare Enrollment and Appeals Group for issuing these important, definitive reminders about Jimmo. Hopefully, these entreaties will be taken seriously by all concerned and will open doors to necessary skilled maintenance care for beneficiaries throughout the country.