NAELA News: Center for Medicare Advocacy Toolkit: Medicare Skilled Nursing Facility Coverage

January 26, 2018

Center for Medicare Advocacy Toolkit: Medicare Skilled Nursing Facility Coverage
And Jimmo v. Sebelius

  1. IntroductionJimmo v. Sebelius, No. 11-cv-17 (D. VT), is a nationwide class-action lawsuit brought on behalf of Medicare beneficiaries who received care in skilled nursing facilities, home health care, and outpatient therapy and who were denied Medicare coverage on the basis that they were not improving or did not demonstrate a potential for improvement (known as the “Improvement Standard). On January 24, 2012, the U.S. District Court for the District of Vermont approved a Settlement in Jimmo between attorneys for the Jimmo plaintiffs (the Center for Medicare Advocacy and Vermont Legal Aid) and the Centers for Medicare & Medicaid Services (CMS).

    The Jimmo Settlement required CMS to undertake the following to remedy the practice of erroneously denying Medicare coverage based on an “Improvement Standard:”

    1. Revise the Medicare Benefit Policy Manual to eliminate any suggestion that a beneficiary must show a potential for improvement, and to confirm that a need for skilled care is the determinative factor, regardless of whether the skilled care is needed to improve or maintain the individual’s condition.
    2. Engage in a nationwide Educational Campaign, using written materials, interactive forums, and national calls, to communicate the correct maintenance coverage standards to Medicare providers, contractors, and adjudicators.

    After receiving input from the Center for Medicare Advocacy and Vermont Legal Aid, the Secretary of the U.S. Department of Health and Human Services (HHS) published the revised Medicare Benefit Policy Manual on December 9, 2013. The revised Manual emphasizes that coverage for skilled nursing facility (and home health or outpatient therapy) cannot be based on a beneficiary’s ability to improve. (CMS Transmittal 179, Pub 100-02, 1/14/2014).

    As a result of the Jimmo Settlement, Medicare policy now clearly states that coverage “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. Skilled care may be necessary to improve a patient’s condition, to maintain a patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.” (CMS Transmittal 179, Pub 100-02, 1/14/2014).

    On February 2, 2017, the Jimmo Court found that CMS had not properly implemented the Educational Campaign required by the Settlement and ordered the Medicare agency to carry out a Corrective Action Plan to remedy the problems. As urged by the Jimmo attorneys, the Court ruled that CMS failed to explain that consideration of the need for skilled care, not the potential for improvement, should govern Medicare coverage determinations for skilled nursing facilities (home health, and outpatient therapy). As a result, the Corrective Action Plan required the creation of a new CMS webpage dedicated to Jimmo, including a Corrective Statement disavowing the Improvement Standard, Frequently Asked Questions, and new training for Medicare contractors who make coverage decisions.

  2. Unfair Medicare Denials Still HappenUnfortunately, the Center still regularly hears from Medicare beneficiaries and their families about coverage denials for skilled care services based on some variation of an Improvement Standard. These stories often echo the story of Glenda Jimmo, the lead plaintiff in the “Improvement Standard” case. Ms. Jimmo was blind and had an amputated right leg due to complications from diabetes, along with other conditions. She required a wheelchair and home health nursing to care for her multiple on-going medical conditions. However, Medicare denied coverage for her home care on the grounds that she would not improve.

    Ms. Jimmo’s story was just one example of tens of thousands, however, as a result of her lawsuit, the Jimmo Settlement provides all Medicare beneficiaries with long-term and debilitating conditions with protection. The Settlement means that no Medicare beneficiary should be denied coverage for maintenance nursing or therapy provided in a skilled nursing facility (by a home health agency, or outpatient therapy entity) when skilled personnel must provide or supervise the care for it to be safe and effective treatment. Medicare-covered skilled care includes care that improves or maintains or slows decline of a patient’s condition.

    Medicare coverage decisions should hinge on the need for such skilled care, and in meeting the various specific level-of-care criteria (such as having a prior 3-day inpatient hospital stay for skilled nursing facility coverage). Coverage should not be denied because an individual has an underlying condition that won’t get better, (such as MS, paralysis, ALS diabetes, or Parkinson’s disease).

  3. Using This ToolkitThe Center for Medicare Advocacy provides this Toolkit to help Medicare beneficiaries and their families respond to unfair Medicare denials. The Toolkit includes self-help materials to advocate for coverage of skilled nursing facility care that has been denied by providers, Medicare Advantage plans, and/or traditional Medicare.

    The Toolkit contains the following, to help obtain or restore Medicare when coverage is denied:

    A. Official information About Jimmo and Medicare SNF Coverage

    1. An Important Message about the Jimmo Settlement from Medicare’s website, CMS.gov
    2. The Jimmo Settlement Agreement
    3. Jimmo Fact Sheet from Medicare’s website, CMS.gov
    4. Medicare’s Skilled Nursing Facility Benefit Policy Manual – Chapter 8 of the Medicare Benefit Policy Manual (“Coverage of Extended Care [Skilled Nursing Facility] Services Under Hospital Insurance”)
    5. Frequently Asked Questions, from Medicare’s website, CMS.gov
    6. Medicare Appeals Booklet from Medicare.gov

    B. Information from the Center for Medicare Advocacy

    1. Center for Medicare Advocacy’s Frequently Asked Questions
    2. Self-Help Packet for Skilled Nursing Facility Appeals (Including for “Improvement
      Standard” Denials)
    3. Sample Letters for Skilled Care Professionals to Support Medicare Coverage
  • Conclusion
    Although challenging a Medicare denial may seem daunting, beneficiaries and their representatives can win appeals when equipped with the right information. The Center for Medicare Advocacy hopes this Toolkit provides that information, to help beneficiaries, families, and advocates fight for fair Medicare coverage.As always, the Center for Medicare Advocacy will continue working to ensure that Medicare beneficiaries receive the Medicare coverage they are entitled to under the law – and the care they need.

    Let us know if we can provide further guidance.

    Center for Medicare Advocacy
    January 2018

Download the toolkit. (PDF, 165 pages)