On January 23, 2013, the United States District Court of Vermont approved a settlement (Jimmo v. Sebelius) requiring the Centers for Medicare and Medicaid Services (CMS) to confirm that Medicare beneficiaries receiving care in a skilled care facility, home health, or outpatient services are to receive continued care based upon the need for skilled care, and not based upon the potential (or lack thereof) of improvement. In other words, a Medicare beneficiary who otherwise qualifies for care under their Medicare benefit cannot be denied continued coverage because they failed to improve or have “plateaued.” This applies to all Medicare beneficiaries across care settings, whether or not they have Original Medicare or an Advantage plan. The Center for Medicare Advocacy (the Center), the plaintiffs’ attorney in Jimmo, has published a recent article on their website detailing the disturbing lack of compliance with the terms of the settlement and how to file an expedited/fast track appeal. (www.medicareadvocacy.org).

The Center did a national survey of providers in 2018 and found the 40 percent who responded never even heard of the settlement, and that 30 percent were unaware that Medicare coverage does not depend upon the beneficiary’s potential for improvement. The manuals that delineate the standard that should be followed state that “[s]killed care may be necessary to improve a patient’s condition, maintain a patient’s current condition, or prevent or slow further deterioration of the patient’s condition.” Note that the beneficiary must have been receiving coverage under Medicare, and the coverage was not being terminated because the beneficiary reached the maximum allowable benefit (e.g. 100 days per episode of care in a skilled nursing facility). Care in a skilled nursing facility is the most common situation where Medicare beneficiaries appear to be unlawfully denied care; for instance, after 20 days of care, the facility states that Medicare coverage is being terminated because the patient is not improving.

The article on the Center’s website offers advice on how to appeal a denial of continued coverage. A Notice of Medicare Non-Coverage must be provided by the facility at least two days before coverage is to be terminated with detailed instructions on how to file an appeal. The beneficiary or representative has until 12 noon the following day to file the appeal. It is important to meet the deadline to appeal and to gather supporting evidence to argue the case. First, a copy of the beneficiary’s medical record should be requested. Second, the person filing the appeal should seek letters of support from the beneficiary’s community primary care doctor and physical therapist. It is necessary to explain why skilled care is still medically necessary and how terminating skilled care prematurely will negatively affect the beneficiary. Finally, the Jimmo settlement and its standard should be referenced.

The Center has numerous materials on the website, including a Jimmo “Improvement Standard” Appeal Letter Template. There is more detailed information on each of the steps listed above. Many families have been faced with this inappropriate application of an improvement standard that does not exist, nor did it ever exist. Appealing a denial of continued Medicare coverage may provide the patient with the time and tools to make safe and successful transition to home and avoid frequent re-hospitalizations.

The legal advice in this column is general in nature, Consult your attorney for advice to fit your particular situation.

Kathleen Martin, Esquire is licensed to practice in the Commonwealth of Pennsylvania and is certified as an Elder Law Attorney by the National Elder Law Foundation as authorized by the Pennsylvania Supreme Court. She is a principal of the law firm of O’Donnell, Weiss & Mattei, P.C., 41 High Street, Pottstown, and 347 Bridge Street, Phoenixville,610-323-2800, www. owmlaw.com. You can reach Mrs. Martin at kmartin@owmlaw.com

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