JOSHUA GUTTER—As reported by the Center for Medicare Advocacy, “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 judge held that the educational campaign created by the Secretary of Health and Human Services failed to “convey accurate information regarding the maintenance coverage standard.” This “maintenance standard” stands in contrast to the purported “improvement standard,” which considers a patient’s restoration potential before skilled care can be approved by Medicare. The significance of this decision is that, with a better educational campaign, persons with chronic medical conditions should not be denied skilled services under Medicare if such care will only maintain their condition or prevent further deterioration. Therefore, pursuant to the recent Jimmo ruling, the Government needs to improve its educational campaign to effectively communicate that there is a “maintenance coverage standard”—rather than an “improvement standard”—to qualify for skilled services under Medicare.
History & Background
Led by attorneys from the Center for Medicare Advocacy and Vermont Legal Aid, the Jimmo case was a class action suit brought in 2011 against the federal government arguing that the Secretary of Health and Human Services “imposed a covert rule of thumb that operated as an additional and illegal condition of coverage and resulting in the termination, reduction or denial of coverage for thousands of Medicare beneficiaries annually.” As echoed in the recent Opinion and Order, this alleged covert rule of thumb imposed an “improvement standard” that permitted the denial or discontinuance of coverage for certain home health care services if the Medicare beneficiary’s condition would not improve. As a result, Medicare providers and adjudicators evaluating Medicare claims denied coverage if skilled care could only maintain or prevent further deterioration of a patient’s condition. Therefore, the contended “improvement standard” unjustly punished patients with serious, chronic medical conditions who needed skilled care just so their health did not worsen. It is important to note that “in the Jimmo lawsuit, CMS denied establishing an improper rule-of-thumb ‘Improvement Standard,’ and the Court never ruled on the validity of the Jimmo plaintiffs’ allegations.” For these reasons, CMS has stated that its policy revisions and related publications are clarifications of existing policy, as the settlement agreement itself explicitly states that, “[n]othing in this Settlement Agreement modifies, contracts, or expands the existing eligibility requirements for receiving Medicare coverage.”
The Settlement Agreement
In January 2013, a settlement agreement was finalized between the plaintiffs and government, which established a “maintenance coverage standard” providing that “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.” As reported in the New York Times, the settlement was “a landmark decision for Medicare recipients with chronic illness and especially those with disability . . . Disability frequently accompanies many chronic conditions . . . and we often have no cures, so people are likely to experience progressive disability.” The settlement agreement required revisions to the Medicare Benefit Policy Manuals (MBPM) to clarify coverage standards when there was no restoration or improvement potential, and the agreement also required the Secretary and CMS to “engage in certain educational activities designed to implement the changes to the MBPM and to educate stakeholders regarding the maintenance coverage standard.” In the court’s recent August 2016 ruling, the judge held that the educational campaign conducted did not satisfy the terms of the settlement agreement, and she ordered a proposal of corrective action, which is yet to be determined.
What Went Wrong & What Can Be Done
As quoted from the 1992 Vermont case of Folland v. Sullivan, “[a]n elderly claimant need not risk deterioration of his or her fragile health to validate the continuing requirement for skilled care.” However, nearly three years after the Jimmo settlement agreement, failure to improve is still being used to deny Medicare coverage for skilled care and certain home health services. The recent Opinion & Order noted that the educational campaign implemented after the 2013 settlement was inadequate, confusing, and did not effectively communicate the significance of the “maintenance standard.” For these reasons, the judge held that the educational campaign was unsatisfactory.
The Plaintiffs’ suggestions to improve the educational campaign included posting a frequently asked questions section on the CMS website, holding national calls for providers, suppliers, contractors, and adjudicators, and creating a dedicated e-mail address for providers to pose questions directly to CMS. Educating service providers is of particular significance because these providers do not want to provide skilled care if they believe they will not be reimbursed under Medicare. Thus, if a more effective educational campaign can offer guidance to these providers, they can deliver skilled care with more confidence that they will get paid. And more importantly, Medicare beneficiaries can get the continued care that their unique medical conditions require.
After the 2013 agreement was established, Michael Benvenuto, one of the lead attorneys from Vermont Legal Aid, stated that “[t]his settlement should send the message that denying Medicare coverage for a chronic condition is wrong.” Similarly, even as the original settlement was being proposed, the New York Times wrote an editorial extolling the humanity of the rule change. Together, these notions epitomize an ideal of human dignity that skilled care should be provided to the elderly or disabled, even when their condition may not improve. While increased care can lead to increased costs, penalizing people for their chronic medical conditions is not appropriate. Furthermore, it is also possible that the “maintenance coverage standard” may actually reduce costs in the long-term. For example, regular nursing visits can potentially reduce the number of future medical complications that require expensive treatments such as hospitalization. Presently, however, the next step is to better educate providers, patients, and adjudicators that the authorization of skilled care should be subject to a “maintenance coverage standard” which is not dependent on a person’s improvement potential, so that Medicare beneficiaries can get the services they need.