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From Health Law Daily, October 28, 2014

Medicare’s ghost, tackling the ‘improvement standard’ after landmark settlement supposedly killed it

By Bryant Storm, JD

Glenda Jimmo, the Medicare beneficiary who served as the lead plaintiff in a Medicare lawsuit that broadened Medicare physical therapy eligibility requirements is still engaged in a legal contest with the government to have the settlement, which bears her name, applied to her own case. According to a National Public Radio (NPR) report, Jimmo is appealing a Medicare Appeals Council decision, which denied her claim for home health care on the ground that her condition was not improving, because the criteria the Medicare Appeals Council used was criteria that the settlement was supposed to have invalidated.

Settlement. Jimmo, 78, who is legally blind and has a partially amputated leg, was the lead plaintiff in a class action lawsuit to have Medicare pay for physical therapy and other care from skilled professionals in circumstances where a beneficiary’s health status has plateaued, or is not improving. The policy known as the “improvement standard” was effectively eliminated when HHS settled the class action and agreed that Medicare coverage was available for skilled services to maintain an individual’s condition. After the settlement, the improvement of a beneficiary’s health was not to be a factor in Medicare coverage determinations. Despite the landmark change, the settlement was met with hesitation when some experts expressed concern that CMS would have to change written policies and standards as well as overcome years of claim processing based upon applications of the mythical improvement standard (see, Providers show inconsistency in providing skilled care in wake of Jimmo decision, CMS silence, March, 21, 2013).

Complaint. In keeping with concerns that new standard would not take immediate effect, the Medicare Appeals Council upheld the earlier denial of Jimmo’s claim. In explaining its position, the Medicare Appeals Council reasoned that it agreed with the earlier decision on the grounds that Jimmo’s condition was not improving. In other words, the Medicare Appeals Council used the improvement standard, despite the fact that the Jimmo settlement supposedly eliminated that very criterion. In response, in June Jimmo’s attorneys filed a complaint in a second lawsuit, which seeks to compel the government to uphold its promise not to use the improvement standard in future Medicare coverage determinations.

Plateau. The improvement standard is simply unworkable for many Medicare beneficiaries. For example, in the case of beneficiaries with Parkinson’s disease, "just maintaining function is a victory," according to Ted Thompson, chief executive of the Parkinson's Action Network, one of the seven advocacy groups that had joined the original lawsuit. When anything like an incurable condition is at stake, in many cases therapy is important just to prevent decline. A rule which requires constant progress creates an untenable and unfortunate reality where beneficiaries have to decline in order to get the care they need.

Persuasion. Although the settlement has not yet worked to help Jimmo get her care paid for, it has helped others. Gabe Quintanilla sent copies of the settlement to his mother’s doctor, insurance company, and home care center in order to persuade his mother’s Medicare Advantage plan to cover the costs of his mother’s therapy. The tactic worked and, at least in the case of Quintanilla’s mother, care that began with a goal of maintenance ultimately led to some improvements in his mother’s health, proving the value of Jimmo’s hard fought settlement.

MainStory: TopStory ReimbursementNews PartCNews PaymentNews HomeNews OutTherapyNews

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