It’s bad news. You’ve had a serious stroke. You’ve been in the hospital and transitional care for months working with skilled caregivers to regain your abilities. During these difficult times, you are comforted by the fact that Medicare is covering your mounting bills. Unfortunately, the doctors say that you will never return to your previous level of function and independence. Your condition has stabilized but you still have to work diligently with rehab providers to prevent losing the gains you’ve worked so hard to make. Now, adding insult to injury, you find out that because you are no longer “improving,” Medicare will no longer pay for your rehab and other skilled care. This makes no sense!
Until recently, Medicare had a longstanding policy of denying coverage for participants who had “plateaued,” were “chronic,” “stable,” or who were otherwise “not likely to improve.” This policy, commonly referred to as the “Improvement Standard,” resulted in many patients not receiving the skilled care necessary for preservation of their health. Individuals with conditions such as Alzheimer’s, Parkinson’s, Multiple Sclerosis, strokes, spinal cord injuries and brain trauma who clearly needed skilled care were denied Medicare coverage because their conditions were “not likely to improve.”
There were many critics of the Improvement Standard who pointed out that in addition to unfairly punishing a class of individuals with serious health care needs, the Improvement Standard also resulted in a harmful and expensive pattern of hospitalization and rehospitalization. Individuals with chronic conditions often went without required skilled care until they reached a health crisis requiring hospital admission. At this point, Medicare would provide skilled care and their condition would improve. Once their condition stabilized, however, Medicare would withdraw coverage for skilled care and the downward health spiral would begin anew. This pattern resulted in poor health outcomes as well as greatly increased overall costs for Medicare.
In 2011, a group of Medicare advocacy groups and individuals adversely affected by the Improvement Standard joined forces to file a class-action lawsuit (Jimmo v. Sevelius) against the federal government. The plaintiffs and the Department of Health and Human Services (HHS) eventually began working toward a settlement and in January of 2013 announced that they had reached an agreement whereby HHS would:
1. End the Improvement Standard by revising Medicare manuals to clarify that coverage is not dependent on a beneficiary “improving” and that skilled care necessary to maintain a person’s condition or to prevent or slow further deterioration is eligible for coverage;
2. Design and implement a nationwide educational campaign to inform Medicare providers and contractors of the revised policy; and
3. Allow individuals who were previously denied coverage and had exhausted their appeals to file for re-review of their claim, using the newer policies as the standard. (The form to request re-review can be found here: https://www.q2a.com/Portals/0/JIMMO_REREVIEWFORM-508.pdf).
On December 6, 2013, the Center for Medicare and Medicaid Services (CMS) published the revised manual called for in the Jimmo settlement. The revisions clarify that Medicare coverage of skilled services “…does not turn on the presence or absence of a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care.” Each case must be individually assessed to determine the need for, and the reasonableness of skilled care.
Although the Improvement Standard is no longer being used, CMS has cautioned that coverage for skilled services must be accompanied by appropriate documentation of the need for the services in order for coverage to be approved. There are no magic words or phrases that must be used, but generalizations such as “patient tolerated treatment well” or “patient remains stable” will be insufficient to establish coverage. Providers should take care to note exactly how the provided skilled care is either improving or preventing deterioration of the patient’s health.
If you wish to read the official revised manual, it can be found at https://www.cms.gov/Outreach-andEducation/Medicare-Learning-Network-MLN/MLNMattersArticles/Downloads/MM8458.pdf.
Barry M. Meyers
Elder Law Offices of Barry M. Meyers
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