Update on Jimmo v. Sebelius and Opportunities to Participate in Section

By John R. Potter 

This blog updating the status of the Jimmo v. Sebelius was drafted in December for publication in January but was preempted by the SECURE Act. The goal of these Elder Law blog posts is to raise awareness about significant issues elder law attorneys might want to consider or investigate further. We welcome suggestions for blog post topics; we also welcome blog post writers. As you will see from this blog and the SECURE Act blog, we are not looking for the great American novel, and we do not ask that posts rise to the level of law review-level research or commentary. If you have a suggested topic or would like to submit a blog post, please reach out to me at john@carolinaestatelaw.com.

Just a reminder that the Elder Law Symposium is in Charlotte at the end of this week. If you have an interest in participating in the Elder Law Section, whether the contribution is big or small, we would love to hear from you. Our Pro Bono Committee and CLE Committee in particular could use more hands, but Communications, Ethics, Legislative, and Membership would also welcome help. To find out more, please talk to a member of the Section Council or a Committee Chair at the Symposium or reach out to one of us afterward.

Update on Jimmo v. Sebelius

Back in 2013, I wrote an article for Gray Matters in which I excitedly described a new settlement between the Centers for Medicare and Medicaid Services (CMS) and the Center for Medicare Advocacy (CMA) that would change the landscape for patients who previously would not have received Medicare coverage for the nursing home rehab they desperately needed. This revolutionary settlement in Jimmo v. Sebelius, No. 5:11-CV-17 (D.Vt.), would replace the reviled “Improvement Standard” with one more concerned with patient well-being. The text of the settlement agreement can be found here (accessed Dec. 10, 2019).

It seems the more things change, the more they stay the same. After more than six years, I still have clients regularly walk into my office and tell me that the nursing home says a loved one’s twenty days of Medicare-covered skilled nursing care are up and that the loved one will be either discharged (ready or not) or transitioned to custodial nursing home care (even if further rehab could potentially have actually improved his or her condition). Nursing homes certainly don’t object to legitimately billing Medicare (and getting paid) for more days of rehab, but they still appear to be concerned about running afoul of that informal Improvement Standard.

As a refresher, what is the Improvement Standard and what did the Jimmo Settlement do?  In a nutshell, the Improvement Standard was an informal guideline used by Medicare in determining whether to permit reimbursement for skilled nursing expenses. As the twenty-day mark of rehab approached, the physicians at the nursing home would determine whether the patient could be expected to improve with further rehab; if so, they would seek reimbursement from Medicare for additional rehabilitation for up to eighty additional days if the improvement was expected to continue. (CMA has provided a quick summary of Jimmo and the efforts to implement the settlement in “Implementing Jimmo v. Sebelius: An Overview, June 2019,” available here, accessed Dec. 10, 2019). (You may have seen the recent article in the NAELA News with the same name; that article reprints the “Background” section of the brief on the website; the website version also contains links to resources at the end.)

The plaintiffs in Jimmo argued that this Improvement Standard was nowhere to be found in Medicare’s formal rule-making and was inconsistent with the federal statute which only required that the patient need skilled care, whether for improvement or to prevent or slow deterioration. In the Jimmo settlement, CMS agreed that Medicare would no longer use the Improvement Standard in adjudications and would instead base reimbursement decisions on the expected benefit of the skilled nursing care or therapy to the patient. CMS agreed to revise its policy manual and begin an educational campaign to correct the confusion the Improvement Standard had created.

The Medicare policy clarification issued Jan. 14, 2014, now states:

No “Improvement Standard” is to be applied in determining Medicare coverage for maintenance claims that require skilled care. Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes (i.e., to prevent or slow a decline in condition). The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves.

See CMS Transmittal 179, Pub  100-02, Jan. 14, 2014, Part I (Summary) (bold in original), available here (accessed Dec. 10, 2019).

As you can see, the Medicare policy has been clearly changed; unfortunately, the education campaign has not been terribly successful. Medicare was taken to task by the Jimmo court in 2017 for failing to take adequate action to educate providers. See “Implementing Jimmo” at 3. The Improvement Standard problem persists, though. See id. at 3-4. A 2018 survey that received responses from 80 providers and advocates found that almost 40% had never heard about the Jimmo Settlement, almost 30% did not know that Medicare coverage does not require expected improvement, and 70% had never heard about Medicare’s court-ordered education campaign. See CMA Survey: CMS’s Jimmo v. Sebelius “Improvement Standard” Education Still Not Working, available here (accessed Dec. 10, 2019). Based on anecdotal evidence, those numbers are higher than I would have expected.

So what should we as elder law attorneys do?  Challenging individual coverage decisions is difficult to do in a timely way, but—I can’t believe I’m saying this six years after the settlement—we can use our experiences with individual clients and our interactions with health care providers as an opportunity to provide further education to skilled care providers about the Jimmo settlement and as an opportunity to build or improve relationships with those providers by giving them that valuable (and potentially profitable) information where the word has not reached them. CMA has prepared a significant amount of educational resources surrounding the settlement, so advocates do not have to re-create the wheel. Links to those resources can be found on page 7 of “Implementing Jimmo.” It would be a shame if we are still talking about this in another six years.