Elder Law Firm of Andrew Olsen

Post-Jimmo Compliance: Medicare Coverage for Skilled Nursing Care Should Turn on Need and Not Potential for Improvement

February 17, 2017

Medicare patients with long-term, debilitating, and chronic conditions have scored two recent victories in federal court.  Medicare covers skilled nursing and rehabilitation therapy to maintain or slow decline of a condition as well as to improve a patient’s condition.  Often, however, patients have often been told that Medicare will not cover these treatments if there is no potential for improvement.  Two federal court rulings have signaled a change of practice in continuing Medicare coverage for these treatments based on a new standard.  The standard for Medicare coverage decisions is now based on need for the care instead of potential for improvement.

In 2016, in Jimmo v. Burwell, a judge ruled that Medicaid coverage determinations for skilled nursing care, home health care, and outpatient therapy should turn on the need for the skilled care and not on the potential for improvement.  Jimmo is a landmark case brought on behalf of a nation-wide class of Medicare beneficiaries who were denied coverage and access to skilled nursing care or home health services because they did not show sufficient potential for improvement.  A settlement pact in Jimmo required a new maintenance coverage standard, and the Department of Health and Human Services (“DHHS”) was ordered to undergo a nationwide educational campaign.  The Jimmo settlement underscored that improvement is not required to obtain Medicare coverage for skilled care in skilled nursing facilities, home health care, and outpatient therapies, and to a lesser extent in inpatient rehabilitation hospitals.

Since the 2016 Jimmo decision, however, Medicare contractors have continued to make Medicare coverage decisions based on the potential for improvement.  Medicare beneficiaries with chronic and progressive conditions under Medicare Parts A and B continued to be denied access to and coverage for skilled therapy and nursing services.

As of February 2, 2017, in another federal court ruling, DHHS has been ordered to remedy its noncompliance and to undergo a corrective action plan.  The plan requires a new webpage dedicated to the Jimmo decision, a published statement disavowing the former “improvement standard,” a FAQ page outlining the “change in practice” to the new standard, training for Medicare contractors, and a national call to explain the correct maintenance coverage policy.

For Medicare patients with long-term, debilitating conditions, these federal court rulings open doors to continuity of critically important care.  Elder law attorneys and Medicare adjudicators have welcomed the clarification from the courts.  DHHS is required to certify its compliance with the February order by September 4, 2017.

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