CMS is not complying with the class-action Jimmo v. Sebelius settlement of 2013 requiring CMS to stop Medicare providers from denying medically necessary maintenance nursing and therapy to beneficiaries, including those who qualify for home health services.
The Center for Medicare Advocacy announced March 1, 2016 that the plaintiffs' attorneys, the Center for Medicare Advocacy, and Vermont Legal Aid filed a Motion for Resolution of Non-compliance with the Settlement Agreement asking Vermont Chief Judge Christina Reiss to enforce CMS' promise to end the illegal practice.
The settlement included a clause giving Reiss "jurisdiction for up to two or three years after the end of the (CMS) Educational Campaign . . . during which time plaintiffs may seek enforcement of any settlement provisions that they believe the Secretary is not complying with."
The settlement required CMS' January 7, 2014 update of Chapter 7 of the Medicare Benefit Policy Manual, to specify:
"Coverage of skilled nursing care or therapy to perform a maintenance program does not turn on the presence or absence of a patient’s potential for improvement from the nursing care or therapy, but rather on the patient’s need for skilled care. Skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, to prevent or slow further deterioration of the patient’s condition."
In spite of coverage manual updates and CMS-published documents to educate home health agencies, some continue to apply "rule of thumb" or "improvement standard" criteria to deny admission to and/or discharging home health patients because their conditions are chronic, not improving, have plateaued, or stabilized, even when those beneficiaries qualify for home health services and have medically necessary skilled service needs.
Judith Stein, co-counsel for plaintiffs and Executive Director of the Center for Medicare Advocacy justifies the motion in behalf of Medicare beneficiaries.
"The Center for Medicare Advocacy continues to hear of providers who never heard of (Jimmo v. Sebelius) and patients who can’t get necessary care based on an Improvement Standard. For example, in July one of our clients received a notice denying Medicare and cutting off therapy ‘because [of] failure to show progress.’ CMS could help, but has refused to provide any more education or written information – although attorneys for the plaintiffs have repeatedly provided evidence of problems, dozens of examples, and even prepared much of the material needed to provide further education and implementation.”
Gill Deford, Director of Litigation for the Center for Medicare Advocacy, and lead counsel for the plaintiffs said the motion was necessary because:
CMS issued a Fact Sheet outlining the Jimmo v. Sebelius settlement. The fact sheet shows that skilled maintenance services are covered for home health care.
“For over two years, we have tried repeatedly to get Medicare to take additional steps to make sure that providers and contractors knew that the days of using an Improvement Standard test have ended but (CMS) would not do anything. We’ve provided overwhelming evidence that providers and contractors were not educated about the Settlement Agreement and that Medicare beneficiaries were still having their coverage terminated.”