Federal court orders CMS to educate more about Jimmo 'Improvement Standard' case

James M. Berklan
James M. Berklan

Long-term care providers and consumer advocates were able to celebrate a victory over federal regulators on Thursday.

But while the infrequent partners might feel they caught a good decision out of U.S. District Court in Vermont, they're also likely to be wincing about the ones that “got away.”

In brief, the federal court has ordered the Centers for Medicare & Medicaid Services to propose a better educational campaign concerning the 2013 Jimmo case settlement. That agreement set conditions for allowing Medicare coverage of rehab services for certain beneficiaries, whether or not they were functionally improving. The acceptance of "maintenance coverage" after decades of following stricter "improvement standard" criteria reverberated throughout the provider community.

But consumer advocates, and providers (at a lower volume), have complained in the three years since a settlement was reached with federal regulators that its terms were not being followed.

It is not known whether CMS will appeal the decision or meet the deadline to comply with the court's order for a plan of improvement. It has 45 days from Wednesday's ruling to do so.

Groups such as the American Health Care Association and the Center for Medicare Advocacy, among others, were cheered by the court's dressing down of CMS's lackluster efforts to educate stakeholders. But their opponents also had reason to smile, and probably smirk.

That's because while the court sided with the plaintiffs in some aspects of the 22-page ruling, it also denied several others. In essence, the appeals court said that allegations that the Medicare Benefit Policy Manual (MBPM) was not updated correctly or thoroughly enough could not be upheld. That's because the 2013 settlement agreement, in part, allows the CMS administrator to refuse to make “certain clarifying revisions” — and also authorizes no penalties if they aren't done.

Working in CMS's good stead is the fact that it did make many changes to chapters 7 and 8 of the MPBM. (The only problem is, advocates counter, the changes often didn't address the “maintenance standard” or other pertinent issues raised in Jimmo.)

The court said that although CMS's lack of action was “likely to cause confusion,” it was compliant enough and stakeholders must live with it. The court was adamant that it couldn't order the original settlement altered, an understandable, if unfortunate, circumstance for the provider-consumer side.

In addition to making revisions to the coverage manual, the settlement also stipulated that CMS embark on an educational campaign to inform providers, consumers and other stakeholders about the “maintenance coverage standard.” This heralded crux of the Jimmo case is that therapy patients no longer could be cut off simply because they weren't meeting an "improvement standard." If therapy was helping maintain function and prevent further decline, that would be sufficient. Although the CMS administrator still refuses to acknowledge the improvement standard, this new line of thinking reversed decades of practice that denied thousands of patients needed therapy.

Yet, in real-life practice, it hasn't, providers and consumer-rights groups complain.

The educational “campaign” has been roundly scoffed at by critics who say there's been a severe shortage of informational sessions and opportunities to ask questions and receive feedback from the CMS administrator's office. In a lengthy feature article in the August issue of McKnight's Long-Term Care News, AHCA's Mike Cheek pointedly complains about the “one-and-done” nature of the educational efforts by CMS. 

The settlement, however, called only for a “good faith” effort to notify plaintiff's attorneys and make other basic publicity efforts about any educational outreach. The court agreed that CMS met that burden, even though the plaintiffs said research shows a huge swath of providers still aren't aware of any educational outreach efforts. The result, they say, is needed therapy not being ordered and coverage being wrongly denied.

The plaintiffs' one victory came in a “close question,” the court ruled, because CMS “failed to fulfill the letter and spirit” of at least one element of the educational campaign. At least some of the information given to providers and consumers was “inaccurate, non-responsive, and failed to reflect the maintenance coverage standard.”

CMS's summary of questions and answers from a national conference call were especially deficient, officials said. So much so that CMS officials didn't even “convey accurate information regarding the maintenance coverage standard.” In other words, the main pillar of the Jimmo case.

The feds may have signed onto the settlement three years ago, but they clearly had more favorable terms written into it than opponents first believed. Add the fact that they've been begrudging in the way they took a stab at disseminating information, and it's no wonder patient advocates and providers are frustrated. The CMS administrator repeatedly has refused to hold more conference calls or even entertain more coverage questions.

But that might change now. The court's slap on the hand about CMS not being a good enough teacher isn't everything the plaintiffs in this case wanted. And it's yet to be seen just how much effort the administration will put into any new outreach and education. If past history is any indicator, it will be as little as possible — if they don't just blow it off and see the matter return to court again, that is, a distinct possibility.

But this new ruling, which was announced Thursday morning, at least keeps the provider-consumer team in the game, and allows it to continue holding CMS's feet to the fire.

That, ironically, is a position that enables it to maintain, if not necessarily improve, their leverage in the matter. Fitting terms for something involving the Jimmo case.

Follow James M. Berklan @JImBerklan.







Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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