More than three years ago, I wrote about a class action lawsuit called Jimmo v. Sebelius, where the government agreed that the “failure to improve” standard should not be the deciding factor in terminating an individual’s Medicare skilled nursing benefit.  When the case was settled in 2012, the Centers for Medicare and Medicaid Services (“CMS”) agreed to revise the relevant portions of the Medicare manual to reflect that a patient does not need to be improving in order to continue receiving skilled care. Unfortunately, after the case settled, nothing really changed. As such, the parties were back before the judge, and on February 1, 2017, the court entered an order to force compliance with the settlement. This finally means good things for those covered by Medicare.

To understand the significance of this settlement, you need to know a little about Medicare’s coverage for nursing home care and home health care. For nursing home care, Medicare coverage is limited to “skilled” care only for a maximum of 100 days. If you are in a skilled nursing facility after a 3-day hospital stay (observation status does not count) and meet all the other requirements, then traditional Medicare Part A will cover up to 100 days of skilled care for each benefit period, subject to certain co-pays. Medicare also has a home health care benefit that provides coverage for those that are homebound and require certain “skilled” services. If you are covered by a Medicare Advantage plan instead of traditional Medicare, then your coverage may be slightly different.

The key, however, is that Medicare only pays for “skilled care” as opposed to “custodial care”. Thus, the determination as to whether you need custodial care or skilled care is crucial to obtaining Medicare coverage. If you are in a nursing home and don’t qualify for Medicare, then you must find another source of payment for the nursing home, such as private payment or Medicaid. If you are homebound, and the provider says you don’t need skilled services, then you might be denied coverage for therapy that is needed to keep you healthy enough to remain in your home.

Medicare deems your care as “skilled” when you need skilled nursing or rehabilitation staff to manage, observe, and evaluate your care. Quite often, it is physical, occupational or speech therapy that you receive which qualifies you for the Medicare skilled care coverage. In the nursing home context, that coverage can continue for up to 100 days. However, once the care is no longer considered to be “skilled” your Medicare coverage ends. That is, there is no guarantee you will receive 100 days of coverage because Medicare Part A benefits end when the care is no longer meets the “skilled” criteria.

The problem is that for decades many people (including those in the nursing home industry) have believed that coverage ceases as soon as you “plateau”, i.e. as soon as you cease to improve. This means that Medicare beneficiaries – particularly those with long-term or debilitating conditions and those who need rehabilitation services – have been denied necessary care based on the “Improvement Standard”. As a result of the Jimmo settlement, the government has agreed that this “Improvement Standard” is not correct.  The Jimmo case confirms that Medicare coverage is available for skilled nursing and therapy that is needed to maintain a person’s condition or prevent or slow deterioration.  As such, even if full recovery or medical improvement is not possible, you are entitled to Medicare coverage if skilled services are needed to prevent further deterioration or preserve current capabilities. Of course, you need to meet all of Medicare’s criteria for coverage, but if you do, skilled maintenance services will now be covered in a nursing home, at home or as an outpatient.

While the Jimmo case settlement was actually effective in 2012, as noted above, providers never followed the change. However, with the new court order, CMS is required to implement a “Corrective Action Plan.” Among other things, the Corrective Action Plan requires CMS to create a new webpage dedicated to Jimmo; they must publish a corrective statement disavowing the improvement standard and post a list of Frequently Asked Questions. Finally, CMS must conduct a new training for contractors making coverage decisions. CMS must comply with the Corrective Action Plan no later than September 4, 2017.

With this most recent development, Medicare decision-makers and providers should no longer require improvement as a condition of continued coverage. Instead, health care providers must recognize that “maintenance only therapy” is covered and they are to make decisions based on whether a beneficiary needs skilled care that must be performed or supervised by a professional nurse or therapist.

If your Medicare coverage is terminated because you have “plateaued” or you are told that you are “maintenance only,” then you should check this website for more information on how to get the Medicare coverage that you have always been entitled to: