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www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 1 CENTER FOR MEDICARE ADVOCACY, INC. ACADEMY OF SPECIAL NEEDS PLANNERS Session 4 An Inside Look at the Jimmo vs. Sebelius Medicare Settlement Margaret Murphy March 22, 2013
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CENTER FOR MEDICARE ADVOCACY, INC.
ACADEMY OF SPECIAL NEEDS PLANNERS
Session 4
An Inside Look at the Jimmo vs. Sebelius Medicare Settlement
Margaret MurphyMarch 22, 2013
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PRESENTATION
Jimmo v. Sebelius Update
Practical Implications for Skilled Nursing Facilities (SNFs), Home Health and Outpatient Therapies
Questions & Answers
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Jimmo vs. Sebelius, Civil No. 5:11-CV-17 (D. VT. 1/18/2011)
Federal judge approved Settlement and certified nationwide Class at Fairness Hearing on 1/24/ 2013
Federal Class Action filed 1/18/2011to eliminate Improvement Standard
Settlement Agreement reached with govt attys on 10/16/2012 Plaintiffs: 5 individuals and 6 organizations
• Alzheimer’s Association• National MS Society• National Committee to Preserve Social Security & Medicare • Paralyzed Veterans of America• Parkinson’s Action Network• United Cerebral Palsy
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Jimmo vs. Sebelius, Civil No. 5:11-CV-17 (D. VT. 1/18/2011) (Cont’d)
CMS statement about Jimmo on January 28, 2013: “We are working to implement the terms of the settlement and ensure that beneficiaries have access to the full range of services that they are entitled to under the law. The settlement will clarify existing policy that claims should not be denied solely based on a rule-of-thumb determination that a beneficiary's condition is not improving." From CMS spokesman Brian Cook in an email message to Congressional Quarterly
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Jimmo vs. Sebelius, Civil No. 5:11-CV-17 (D. VT. 1/18/2011) (Cont’d)
U.S. Dept. of Health and Human Services (HHS):
“Under this settlement, Medicare policy will be clarified to ensure that claims from providers are reimbursed consistently and appropriately and not denied solely based on a rule-of-thumb determination that a beneficiary’s condition is not improving.” By Fabien Levy, spokesman for the U. S. Dept. of Health and Human Services
(quote from The New York Times at: http://newoldage.blogs.nytimes.com/2013/02/04/therapy-plateau-no-longer-ends-coverage/)
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What Jimmo Settlement Means:No Denials Based On Improvement Standard
Coverage does not turn on the presence or absence of potential for improvement but rather on the need for skilled care
Services can be skilled and covered when:• Services are needed to maintain, prevent, or slow
deterioration • So long as the beneficiary requires skilled care for
services to be safe and effectiveJimmo Settlement, §IX.6 and §IX.7
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What Jimmo Settlement Means:Revision of CMS Manuals
See CMA website for Jimmo Settlement info: http://www.medicareadvocacy.org/hidden/highlight-improvement-standard
CMS to revise Medicare policy manuals, guidelines, and instructions for SNF, HH & Outpatient (OPT) Therapies (PT, ST, OT)
“Clarify” skilled maintenance therapies and nursing are covered by Medicare
Eliminate conflicting CMS policies
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What Jimmo Settlement Means:CMS Educational Campaign
Within 1 year of Order: All policy revisions completed, CMS Educational Campaign completed
Explain Settlement and new policies to:• Providers, Medicare Contractors, Medicare
Adjudicators, Patients, Caregivers CMS Website, National Calls, Open Door Forums,
written materials & trainings• Policy revisions and Ed. Campaign:
Review/Input from Ctr Medicare Advocacy & Vt Legal Aid
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What Jimmo Settlement Means:Accountability and Reviews
CMS to review random samples of QIC decisions & address errors raised in reviews• Meet regularly with Plaintiffs’ counsel to correct
errors in individual cases Individuals only may request “Re-review” of
Medicare’s decisions final after 1/18/2011• For denials based on Improvement Standard• Not required to exhaust all levels of appeal (denial
on MSN sufficient) Court retains jurisdiction
Jimmo Clarifies Proper Standard
Is skilled professional needed to ensure nursing or therapy is safe and effective?
Is a qualified nurse or therapist needed to provide or supervise the care?
Regardless of whether the skilled care is to improve, maintain, or slow deterioration.
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FAQs re Jimmo Settlement
Can Jimmo help now? Yes! Jimmo clarifies the current law. Use the Settlement Agreement & CMA’s self-help packets. See our website: medicareadvocacy.org
Is Jimmo limited to certain diagnoses, diseases, conditions? No! Jimmo applies to anyone who needs skilled care.
What types of services are covered? Skilled nursing or skilled therapies.
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FAQs re Jimmo Settlement cont’d
To which care settings does Jimmo apply? Skilled Nursing Facility, Home Health, Outpatient Therapy. If a person needs skilled nursing and/or therapy in these settings, Jimmo applies.
Examples of skilled nursing: Wound care; observation & assessment of lung congestion
Examples of skilled therapy: Therapy for an ALS patient with breathing difficulty; ROM therapy for a person with MS and contractures
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NO USE OF“RULES OF THUMB”
Should not be used to deny coverage including:
• Lack of Restoration Potential • 42 CFR §409.32(c); 42 CFR §409.44(b) - Nursing• 42 CFR §409.44(c)(2)(iii)(B) and (C) - Maintenance Therapy • See also comments in 75 Federal Register 70395
• Condition is chronic, terminal, or expected to last long time
• 42 CFR §409.44(b)(3)(iii)
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EXAMPLES OF “RULES OF THUMB”
• Individual or condition is “stable” or “chronic”
• Condition will not improve• Lack of “restoration potential”
• Care is needed for long period of time • Unless a legal limit exists: SNF 100 days;
Outpatient PT/ST and OT annual $1,900 limit (exceptions to “caps”); Home Health – no duration of time limits
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INDIVIDUAL ASSESSMENT REQUIRED
Do not assume Medicare is unavailable based on: • “Rules of Thumb”• Particular diagnosis• Lack of restoration potential• Treatment norms
Base decision on individual’s unique condition & needs• “The unique clinical condition of a patient may require the
specialized skills of a qualified therapist to perform a safe and effective maintenance program….” 42 CFR §409.44(c)(2)(iii)(C)
Jimmo vs. Sebelius
Effects of Jimmo Settlement in Various Care Settings
Next Steps …
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SKILLED NURSING FACILITYSTILL NEED TO MEET
SNF COVERAGE CRITERIA
3 Day prior hospital stay (sometimes waived by Medicare Advantage Plans)
Daily skilled care required to qualify for Medicare coverage:• 5 days/week therapy (PT, OT, ST) or • 7 days/week nursing or nursing and therapy
combined
So – What is considered skilled?
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WHAT IS SKILLED CARE?
… so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel. 42 CFR § 409.32(a)
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HOME HEALTH COVERAGE42 USC §1395x(m)
Services must be ordered by a physician Under a written plan of care Beneficiary must be “confined to home”
(homebound) – does not mean bedbound! Beneficiary must require skilled services
No duration of time limitation
No Co-Payments
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HOME HEALTH COVERAGE
42 CFR § 409.40 et seq
Skilled care requirement:• Intermittent skilled nursing services
• As little as 1 x / 60 days (recurring) or daily for predictable period of time or
• Skilled PT or ST services and, in some circumstances, OT services
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HOME HEALTH (Cont.)
Added Benefit of Skilled Services Medicare Coverageof Other Home Health Services:
• If Medicare covers Skilled Nursing or PT, ST, or continuing OT, then
• Coverage also available for “dependent services”• Home health aides• Social worker, supplies
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OUTPATIENT THERAPIESMEDICARE PART B
Yearly dollar payment cap, indexed annually ($1,900 / year 2013) • PT and ST services ($1,900 combined)• Separate annual cap for OT services ($1,900 OT alone)
Can seek “Exception” to caps
Caps now apply to therapy services received in hospital outpatient department
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MEDICARE PART C (Medicare Advantage Plans (MA Plans))
Private Medicare plans Provisions for delivery systems, not coverage Coverage criteria required to be the same as
those in original Medicare Actual coverage of services not the same in
practice (but should be…) May offer more coverage than original
Medicare, but not less
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What to Do if Medicare Coverage Denied After Jimmo?
Use Jimmo Settlement and CMA self-help packets to educate provider & continue services
Dr. is best ally to order care & keep services in place If denied Medicare coverage: Appeal, Appeal, Appeal
• Expedited Appeal – See instructions in Notice provided• If denied at first level, appeal again for Reconsideration• Strict time limits, but just a phone call from patient or
caregiver• Medical provider will forward medical records for review
• Standard Appeal – continue & request ALJ hearing
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SUMMARY
Restoration potential is not the deciding factor Medicare should not be denied at any care level
because the beneficiary has a chronic condition or needs services to maintain his/her condition
“Individualized assessments” are required Rules of thumb should not be used to determine access to coverage or care
Questions?
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CENTER FOR MEDICARE ADVOCACY
CT: (860) 456 - 7790 DC: (202) 293 - 5760
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