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 U.S. District Court Judge Orders CMS To Comply With Jimmo Settlement

A federal judge in Vermont on Feb. 1 ordered the Centers for Medicare & Medicaid Services (CMS) to implement a Corrective Action Plan under the so-called Jimmo agreement by Sept. 4 to improve education related to the coverage of skilled therapy and nursing services needed to maintain health and function, or maintenance coverage.
The decision marks a win for long term care advocates working to have CMS implement a settlement agreed to in Jimmo v. Sebelius from Jan. 24, 2013. Advocates, including the American Health Care Association/National Center for Assisted Living (AHCA/NCAL), have been supporting efforts by the lead plaintiffs, including the Center for Medicare Advocacy and Vermont Legal Aid.
This latest development stems from an Aug. 17, 2016, ruling (Jimmo v. Burwell) that found CMS did not comply with part of the 2013 settlement pact.
That initial Jimmo settlement included an agreement that added a maintenance coverage standard, and CMS agreed to update its benefit policy and coverage manuals, engage in a nationwide educational campaign, and subject the agency to other monitoring activities to address disputes for three years.
On March 1, 2016, the plaintiffs (beneficiaries and advocates) filed a motion to enforce the settlement. They argued that the CMS educational campaign “was so confusing and inadequate that little had changed,” and that beneficiaries with chronic and progressive conditions under Medicare Parts A and B and Medicare Advantage (MA) were being denied access to and coverage for skilled therapy and nursing services to prevent or delay decline.
To back up this assertion, AHCA/NCAL submitted a legal declaration that said CMS’ education effort had not been “adequate, timely, or complete.”
The fundamental point of the Jimmo settlement process is 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, according to the Center for Medicare Advocacy.
“Coverage does not turn on the presence or absence of potential for improvement, but rather on the need for skilled care,” the group said.
In the Feb. 1 ruling, Christina Reiss, chief judge, U.S. District Court for the District of Vermont, wrote that the court orders that the Department of Health and Human Services (HHS) corrective action plan be completed no later than Sept. 4 and include the following requirements:
1.      CMS publish a new web page dedicated to the Jimmo settlement agreement;
2.      CMS publish a corrective statement disavowing an improvement standard;
3.      CMS post Frequently Asked Questions;
4.      CMS develop and implement training for Medicare contractors and MA plans making coverage decisions; and
5.      CMS conduct a new national call to explain the correct maintenance coverage policy.
In addition to adhering to the already agreed-upon plan, the plaintiffs and HHS must agree that a statement disavowing the improvement standard and explaining the maintenance coverage standard “is an essential component of any corrective action plan.”
But since the two parties are unlikely to agree on such a statement, Reiss sided with the Medicare beneficiaries and their advocates on the matter and their draft of a statement, which reads in part: “The Centers for Medicare & Medicaid Services reminds the Medicare community of the Jimmo Settlement Agreement, which clarified that the Medicare program will pay for skilled nursing care and skilled rehabilitation services when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met).”
The approved statement also specifies that under maintenance coverage standard for both skilled nursing and therapy services, “skilled nursing services would be 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.”
And on skilled therapy, the Reiss-approved language says that such services are covered when an “individualized assessment” of the patient's clinical condition shows that skilled care is necessary to fulfill a safe and effective maintenance program.
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