MARYLAND AAHAM The MYTH of the Medicare
“Improvement Standard” for Skilled Services:
How to Use the “Jimmo Settlement”
to Your Advantage
Catherine (Kate) H. Clark, CPC, CRCE-I cclark@kohlerhc.com
Kohler HealthCare Consulting, Inc.
410-979-1624
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Today’s Objectives
Describe background and outcome of the Jimmo
Settlement
Correct the widespread misperception of the Medicare
“Improvement Standard”
Discuss the Court’s decision and the effect on care
Clarify settings where skilled services covered by Medicare
Review CMS answers to Frequently Asked Questions (FAQs)
about medical necessity in: home care, outpatient therapy
and SNF
Identify CMS resources and facts to support reversal of
denials
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The MYTH’s Backstory…
For years, Medicare beneficiaries have been told
they must show progress towards goals
– Therapists have to set goals based on this
– Therapists have to document treatment in relationship
to these goals
THE MYTH: “No progress equals no Medicare
coverage -- unless the problem got worse, in which
case the treatment could resume.”
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TRUTH: Jimmo v. Sebelius Case
This frustrating Catch-22 spurred a class-action lawsuit against Health
and Human Services Secretary Kathleen Sebelius.
A fairness hearing, brought by six (6) individual beneficiaries and seven
(7) national organizations representing people with chronic conditions,
to challenge the use of the rule of thumb “Improvement Standard”:
UNITED STATES DISTRICT COURT for the DISTRICT OF VERMONT :
GLENDA JlMMO v. KATHLEEN SEBELIUS
TRUTH: January 2013, a federal judge approved a
settlement in which the government agreed that
"improvement standard" is not necessary to
receive coverage.
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How Did We Get Here?
For years, both providers and Medicare beneficiaries have operated
under the incorrect assumption that Medicare will only pay for rehab
therapy or other skilled care if a patient shows improvement towards
treatment goals as a result of that care.
Requirements: Designation of Skilled Services and Medical Necessity
The Jimmo agreement settles once and for all that Medicare coverage
is available for skilled services to maintain an individual’s condition or
prevent or slow their decline.
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Medicare Improvement Standard
Inappropriate denials by contractors based on a rule-ofthumb “Improvement Standard” – claim would be denied
due to a beneficiary’s lack of restoration potential and
progress towards goals
Denial even when the beneficiary required a medically
necessary level of skilled care in order to prevent or slow
further deterioration in his or her clinical condition (e.g.
Parkinsons)
Medicare statute and regulations have never supported the
imposition of an “improvement standard.”
In the Jimmo lawsuit, CMS denied establishing an improper
rule-of-thumb “Improvement Standard.”
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The Court’s Decision and Effect on Care
 A clarification of coverage, not an expansion of coverage
 Applies to all three care settings:
 Medicare home health
 Outpatient therapy
 Skilled nursing facility benefits up to (not in addition to) 100 days of
coverage per benefit period.
 Applies to beneficiaries who clearly need skilled care and
are not able to access because they could not document or
support the improvement of the condition or restoration of
function.
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The Court’s Decision and Effect on Care
 Settlement took effect immediately for traditional
Medicare A/B and private Medicare Advantage
plans.
 Coverage allowed regardless of the underlying
illness, disability or injury.
 Coverage not limited to certain conditions/diseases
 Coverage is based on documented need for skilled
services
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The Court’s Decision Effect on Care
 Medicare is working to implement the terms of the
settlement and ensure that beneficiaries have
access to the full range of services they are entitled
to under the law
 Documentation
 Electronic Medical Records – templates, patient
charging, patient process flow
 Denials
 Appeals
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A Medicare Fact Sheet
has been Issued…It States:
Medicare policy has long recognized that there may also be specific
instances where no improvement is expected but skilled care is,
nevertheless, required in order to prevent or slow deterioration and
maintain a beneficiary at the maximum practicable level of function.
Beneficiaries will receive the care to which they are entitled
CMS to revise relevant program manuals used by Medicare contractors.
CMS will complete the manual revisions and educational campaign by
January 23, 2014.
See: http://www.cms.gov/Medicare/Medicare-Fee-for-ServicePayment/SNFPPS/Downloads/Jimmo-FactSheet.pdf
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FAQs and CMS Clarification:
Q: Can the Jimmo Settlement Agreement help now?
Yes. The Settlement Agreement standards for Medicare
coverage of skilled maintenance services apply now. The
government insists it is only clarifying what has always been
the Medicare coverage standard. The Settlement does not
change Medicare laws or regulations. The law never
supported the requirement that people improve in order to
support a covered service. Accordingly, health care
providers should implement the maintenance standard
now.
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FAQs and CMS Clarification:
Q. How does the settlement affect outpatient physical,
occupational and speech therapy?
Medicare covers home health, nursing home or outpatient therapy
(professional or facility) to maintain the patient's condition and prevent
decline. Coverage does not depend upon the "potential for
improvement from the therapy but rather on the beneficiary's need for
skilled care."
What is still applies?
–
–
–
–
Provider Order supporting medical necessity
Provider scope of practice
Therapy Caps - $1,900 PT and SLP, another $1,900 OT
Provider “G” codes and functional therapy modifiers (when applicable)
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FAQs and CMS Clarification, cont’d :
Q. How does the settlement affect outpatient physical,
occupational and speech therapy (continued)?
Therapy Cap - KX modifier allows providers to request
additional care reimbursement for outpatient.
Must document ongoing need for skilled care beyond
payment limit (Home Health excluded)
Home Health excluded from pay limits
http://www.medicare.gov/Pubs/pdf/10988.pdf
Coverage standards clarified in this ruling do not apply to
inpatient rehabilitation facilities (IRFs) or comprehensive
outpatient rehabilitation facilities (CORFs).
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FAQs and CMS Clarification:
Q. Is home health care affected?
Yes. Home Care services include therapy, mental health counseling and nursing
care.
Medicare Eligibility Requirements:
– Homebound status although not necessarily confined to bed.
– Skilled nursing services or under the supervision of skilled personnel are
covered including administering intravenous drugs and wound care.
– Skilled PT, OT, SLP, SW services or therapy under the supervision of skilled
personnel
– No time limit for home care if the amount of skilled care is reasonable and
not given daily, is provided by a trained professional and treatment is
medically necessary.
– Medicare pays for part-time home health aides to provide assistance with
dressing, eating and other daily living activities, but only for patients who
also receive skilled care at home.
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FAQs and CMS Clarification:
Q. So, specifically… the Jimmo Settlement allows people
to get coverage for Rehab Services at home?
Yes. Physical therapy, speech and occupational therapies
are covered service under the Medicare home health
benefit. If the individual meets the other Medicare home
health qualifying criteria, the Jimmo Settlement makes it
clear that "maintenance therapy” can be covered under the
home health benefit if a qualified therapist is required to
ensure the care is safe and effective.
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FAQs and CMS Clarification:
Q. What does the agreement say about Nursing Home
coverage?
Skilled nursing services are covered when "necessary to maintain the patient's
current condition or prevent or slow further deterioration."
Nursing services or therapy must be based on a patient's clinical condition and
be provided by a registered nurse, licensed practical nurse or therapist.
Beneficiaries qualify only after having spent at least three days in the hospital as
an inpatient. (Observation stays do not count.)
Medicare will cover up to 100 days in a nursing home per "benefit period,"
which starts when a beneficiary enters the hospital or a nursing home for skilled
care and ends 60 days after the skilled care has been discontinued.
Even if nursing home residents do not qualify for Medicare coverage of their
stay in the facility, Medicare still may cover rehab therapy services for residents
who meet the requirements for outpatient therapy.
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FAQs and CMS Clarification:
Q. What about nursing home residents in long-term care
who have used up their 100 days and pay out of their own
pockets?
Seniors can still get skilled care even if they are not
improving and have used up their 100 days of nursing home
coverage. Even if residents do not qualify for Medicare for
their stay in the nursing home, Medicare may cover physical
therapy and other skilled care for those who meet the
requirements for outpatient therapy. The $1,900 outpatient
therapy caps would also apply.
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FAQs and CMS Clarification:
Q. What if skilled care was already stopped because of the
Improvement Standard and the patient is no longer
receiving services?
If skilled services stopped because of the Improvement Standard and
the physician thinks the services are needed, ask her to prescribe the
skilled nursing or therapy again. Prescription should explain in writing
why skilled nursing or therapy is required: How will you benefit? Will
the services help maintain current condition or prevent or slow
deterioration?
Remember: all other Medicare requirements must still be met. For
example, skilled therapy in a nursing facility could be re-prescribed and
the 3-day hospital stay that is required for coverage must also be met
again. The homebound requirement still applies for Medicare coverage
of home health care, and the annual dollar cap applies for outpatient
therapies.
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FAQs and CMS Clarification:
Q. Is the Jimmo Settlement Retroactive? Will Medicare
reimburse people who were denied coverage due to a lack
of improvement?
Yes. A special review process will be set up for patients whose claims
were denied after the lawsuit was filed on Jan. 18, 2011.
The Settlement Agreement establishes a process called "re-review" for
Medicare beneficiaries who received a denial of skilled nursing facility
care, home health care, or outpatient.
After the government completes the revision of its policy and
guidelines, and educates Medicare decision-makers, individuals will be
able to get a re-review of these claims.
RETRO re-review to January 18, 2011
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CMS’s Free Self-Help Packets
Explains how to challenge a denial of coverage
Reassures providers that Medicare will pay for maintenance
care even if Medicare has not yet sent out an official notice.
Facilities can use Self-Help Packets to help understand
proper coverage rules and contest a Medicare denial for
outpatient, home health, or skilled nursing facility care.
Key sections of the Agreement are highlighted on the
Center’s website; www.medicareadvocacy.org
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Remember …Documentation is Always
the Hallmark of Good Practice
Accurate, Detailed
Plan of Care /Goals to
describe goal of prevention
or decline
Skilled medical necessity language
Supervision of assistive personnel
Timely (time lags should be justified)
Objectively state maintenance of
condition status @ intervals
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Thank You for Your Time Today!
What questions do you have?
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References
“FAQ: Medicare Beneficiaries May See Increased Access To Physical
Therapy Or Some Other Services,” Susan Jaffe, The Washington Post
June 2013
Jimmo v. Sebelius Settlement Agreement Fact Sheet ,U. S. District Court
for the District of Vermont, January 2013
http://www.cms.gov/Medicare/Medicare-Fee-for-ServicePayment/SNFPPS/Downloads/Jimmo-FactSheet.pdf
Self Help Packet: www.medicareadvocacy.org
Improvement Standard and Jimmo News, Center for Medicare Advocacy
Medicare to End 'Improve or You're Out' Standard for Coverage of
Skilled Services, Elder Law Answers
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