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The Long and Winding Road: An Advocate’s Report on Jimmo v. Sebelius and the Battle for Extended Medicare Therapy Coverage

long_winding_roadThis battle is not for the faint of heart. The battle I speak of does not roar but whimpers on in homes and skilled nursing facilities across our nation. It is the battle for getting extended therapy for those rehabilitating from acute injury as well as those suffering from chronic degenerative diseases.

The former need therapy to get back to normal function, and the latter need ongoing therapy to simply maintain what they have and prevent further deterioration. In both cases, getting as much therapy as possible is critical to quality of life.

It seemed like a great victory was won for everyone needing extended therapy on January 2013 when a class action law­suit brought against the Center for Medicare and Medicaid Services (CMS) was won on behalf of the 50 million Medicare beneficiaries in this country (Jimmo v. Sebelius).

The law suit was filed in 2011 by the Center for Medicare Advocacy and Vermont Legal Aid on behalf of four Medicare patients and five national organizations, including; the Parkinson’s Action Network (PAN), the Alzheimer’s Asso­ciation, the National Multiple Sclerosis Society and United Cerebral Palsy.

Jimmo v. Sebelius was filed over a standard for Medicare cover­age, referred to as the “improvement standard.” This standard required Medicare beneficiaries to show “improvement” to continue physical, occupational and speech therapy services. The problem was that this standard was never the spirit nor letter of the original law, but was written into the CMS manuals and used by “fiscal intermediaries” hearing coverage termination appeals below the Administrative Law Judge level. In reality, the law has always provided for skilled care needed to attain or maintain a level of functioning even if the Medi­care Manual didn’t reflect this. Changing “attain” to “attain or maintain” may sound like a small difference to the layperson, but health care professionals and advocates know that while it is difficult to show constant improvement, it is common to benefit from services maintaining function and preventing deterioration.

Medicare manual revisions were required as part of the Jimmo v. Sebelius settlement to reflect the true content of the law, and end the erroneous improvement standard.

There were hopeful voices raised and happy proclamations made by vigorous advocacy organizations across the country. We thought the reign of therapy denial based on a popular, but fictitious, interpretation of law had ended.

My own optimism was woven into a NYT article published this year in their “New Old Age” blog by writer Susan Jaffe heralding the fact that Medicare recipients would now be able to receive extended therapy benefits which could completely change the trajectory of their lives.

medical-claim-deniedWell, it’s been a few years since the Jimmo decision, and even with a professional team consisting of a nurse care manager and experienced elder law attorneys, it is no walk in the park getting extended therapy benefits. The improvement standard was in the CMS manual for so many years, it seems the court-ordered changes have not been enough to end the “improvement standard.” A change in the understanding and behavior of providers and fiscal intermediaries indoctrinated in the “improvement standard” is also needed before patients see the full benefits of Jimmo. This is not happening over­night. CMS has been attempting to educate providers about the Manual changes, but consumers and advocates can help by becoming aware of Jimmo, and insisting on the extended care patients are entitled to.

If you are an advocate for a Medicare beneficiary trying to get extended care, three basic steps of the process are outlined below to assist you:

THE FIRST STEP to obtaining coverage is to make sure that a physician has prescribed the extended therapy.

THE SECOND STEP is to meet your appeal deadlines and explain why continued extended therapy is necessary to “maintain” or “prevent further deterioration” in light of the medical records. Success at any level of review requires a strong grasp of the patient’s condition and an ability to explain this. Try not to be discouraged if people who should know better still discuss “lack of improvement” as a reason to stop benefits. The law is on your side, and people are still learning about Jimmo.

YOUR THIRD STEP is to make sure that extended services continue to be provided to your loved one so that coverage may be granted retroactively upon a successful appeal.

As can be expected, working with the health care and Medicare system to make sure your rights are respected can be a cumbersome process. An elder law attorney and geriatric care manager can help ensure that the appropriate standard of coverage is applied, appropriate appeal deadlines are met, and that your loved one’s unique needs are communicated.

The Center for Medicare Advocacy contains a number of resources for consumers to better orient you to the law on extended therapy coverage: www.medicareadvocacy.org.

If you need help managing the care of your loved one, Grace Care Management can help and we are here for support.  Give Grace Care Management a call at (760) 789-9177 for a free consultation.

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