Landmark Jimmo v. Sebelius Settlement Helps Medicare Patients Receive Skilled Care

Landmark Jimmo v. Sebelius Settlement Helps Medicare Patients Receive Skilled Care

By Morris Klein CELA CAP |

Settlement of a class-action suit filed against HHS makes it easier for patients to continue to receive skilled care services; the settlement removes clandestine policies requiring Medicare patients to exhibit improvement to continue receiving such services. Medicare will now pay for skilled care services needed to maintain a beneficiary's current health or prevent deterioration. Certain persons denied coverage may now have their cases reviewed. In this commentary, Morris Klein, a Fellow of the National Academy of Elder Law Attorneys, writes:

“Under current law and regulations, Medicare will pay for up to 100 days of skilled care in a nursing facility for each spell of illness after discharge (or within 30 days of discharge) from a hospital where the patient has been admitted for at least three days. Medicare pays the entire cost for the first 20 days of skilled nursing home care, and the patient is responsible for paying a co-pay during the remaining 80 days. The co-pay is adjusted annually and is $148 per day in 2013. Separate from skilled nursing home care, Medicare will pay for physician-authorized skilled care to a homebound beneficiary on an intermittent basis, or for inpatient care in a rehabilitation facility. Skilled care includes physical, occupational and speech therapy, wound therapy, and observation of changing conditions.

“These benefits are contingent on the beneficiary's continued eligibility for skilled care services. Medicare contractors that process skilled care claims have relied on informal Medicare policy guidelines such as "Local Coverage Determinations" (LCDs) that assert that continuation of Medicare skilled care coverage is dependent upon a patient's demonstrated "improvement" when receiving skilled care services. Many patients requiring skilled care have long-term or debilitating conditions and are incapable of showing improvement, although skilled care may keep them from further deterioration. The policy resulted in many Medicare beneficiaries in nursing homes losing their skilled care benefit far short of the 100-day limit and homebound patients prematurely losing skilled care at home.

“In Jimmo v. Sebelius, No. 11-CV-17 (D. Vt.) [
enhanced opinion available to subscribers], six individuals and seven organizations filed a class-action lawsuit in federal district court in Vermont challenging the "improvement" standard. Glenda Jimmo, the named plaintiff, had a below-the-knee amputation due to diabetes and required skilled care services at home for wound care. Medicare had refused to continue to pay for her care because the care would only’"maintain’ and not ‘improve’ her condition.

“In their complaint, the plaintiffs argued that the ‘improvement’ standard is more restrictive than permitted under federal Medicare law and regulations.”

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