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Every year thousands of Medicare patients receive physical therapy and other treatment to recover from a fall or medical procedure, as well as to help cope with disabilities or chronic conditions including multiple sclerosis, Alzheimer’s or Parkinson’s diseases, stroke, and spinal cord or brain injuries.

The Medicare program is administered by the Centers for Medicare and Medicaid Services, which is a federal agency within the United States Department of Health and Human Services.

On January 18, 2011, six Medicare patients and seven nationwide patient organizations sued CMS over Medicare coverage. Medicare contractors were improperly imposing an improvement standard to trigger Medicare coverage. The law does not require that the patients’ conditions improve. Rather, Medicare should cover the care if the care will maintain the patient’s condition or prevent or slow further deterioration.

In October 2012 the parties settled the lawsuit. The settlement provided that Medicare coverage does not depend on the “potential for improvement from the therapy, but rather on the beneficiary’s need for skilled care.” The settlement also required CMS to update its policies and conduct a nationwide educational campaign. The educational campaign would ensure Medicare contractors applied the correct standard.

The settlement is commonly referred to as the Jimmo Settlement because the lead plaintiff in the class-action suit was named Glenda Jimmo. Jimmo lost her right leg due to complications resulting from diabetes. A private Medicare contractor denied her coverage for nurses and home health aides because her condition was “unlikely to improve.” But the key criterion should have been whether she had a demonstrated need for skilled care, regardless of her recovery prognosis

Despite the settlement, CMS continued to deny coverage and care based on the improvement standard, according to the national nonprofit group the Center for Medicare Advocacy.

“Three years after the Jimmo Settlement we are still hearing daily about providers who never heard of the case and patients who can't get necessary care based on an improvement standard,” said Judith Stein, executive director of the Center for Medicare Advocacy, in a news release.

On March 1, 2016, the Center for Medicare Advocacy filed a motion with the federal court to end the noncompliance. The motion sought for CMS to end use of the improvement standard. The motion sought to require CMS to fulfill the “failed” campaign to educate providers and Medicare decision-makers on the settlement’s policies. The federal court found that CMS breached the settlement agreement and on Feb. 1 the federal court ordered a corrective action plan that included, among other things, that CMS should: (1) develop a web page with links to public documents about the settlement; (2) develop a web page to answer Frequently Asked Questions re: the settlement; (3) Provide additional training to contractors and adjudicators about the settlement.

The federal court also ordered that CMS must issue a corrective statement that the Medicare program covers skilled nursing care and skilled therapy when a beneficiary needs skilled care to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met).

CMS must fully implement the Corrective Action Plan by Sept. 4.

Those who have questions on this topic or other benefit-related issues for Jefferson County residents age 60 or over may contact the Elder Benefit Specialist at the Aging and Disability Resource Center, 920-674-8734.

Submitted by Denise Grossman, elder benefit specialist.

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