Hold off celebrating until you see the proof from CMS

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James M. Berklan
James M. Berklan

Don't uncork the champagne just yet. That was my sentiment in August when a federal court ruled that the Centers for Medicare & Medicaid Services had come up short in its obligation to educate beneficiaries and providers about the historic Jimmo settlement.

It's also my view today.

Seeing is believing, and we haven't really seen anything yet from CMS.

In brief, the agency did a less-than-lackluster job of spreading word about what Jimmo means when it had its first chance after the 2013 settlement.

Because of that begrudging, error-riddled “effort,” thousands of therapy patients continue to this day to have therapy halted under the fictitious “improvement standard.” The origin of the policy that wiped out so much therapy isn't known. It just somehow became the practiced "law" of the land.

Who would dare think that policy could be formed and become so rock-solid without anything on paper to back it up? Simply coincidentally, the government's stubborn stance has saved it millions upon millions of dollars in reimbursements that haven't had to be paid.

That's untold hours of therapy for patients, and eons of work time not registered or compensated for. Patients, workers and providers all have gotten the short end of the stick — going back decades.

It's why patient and provider advocates were thrilled when the Jimmo settlement was reached about four years ago. CMS, however, has held one — just one — provider conference call in the years since to discuss the implications and field questions. SNF/LTC Open Door Forums are held monthly, for Pete's sake. Twelve times a year. So it's not like the feds misplaced the only slip of paper with the call-in access code on it. (Granted, maybe the Open Door Forums aren't the best example, given that one hasn't been held yet this year, ostensibly due to administration transition issues.)

The point is, if there were willing teachers, there certainly have been willing “students” to soak up crucial Jimmo information. Instead, federal regulators have basically hibernated and refused to play ball.

Now, a new agreement has been approved. But it still sounds a bit iffy. It mandates that another conference call must be held. As if one will be enough. (Remember: There are more than 15,000 certified nursing homes in the country, and that's not counting various other therapy providers. Most still should have questions about what's allowed and what's not.)

The good part of the new plan is that the Department of Health and Human Services must create a new website about the Jimmo settlement, complete with information about handling claims. In an addition of her own, U.S. District Court Chief Judge Christina Reiss also ruled that the new website must clearly state that improvement is not a necessity to receive Medicare therapy coverage. (HHS was allowed to propose its own corrective actions — I am not making this up.) Judge Reiss' other addition was the extra conference call. If that doesn't give you an idea of the bad faith effort HHS has put forth on Jimmo, I don't know what will.

Judith Stein, whose group represented Jimmo in its lawsuit, issued a statement with optimistic overtones after the latest court decision Feb. 1. I haven't talked to Stein since then, but the word “should” pops out of her statement. She used it twice in close succession, as in things should get better.

She, too, seems to be reserving final judgment. That could come Sept. 4, the date by which Reiss said the new plan must be in place. (Before that, HHS has until Wednesday, Feb. 15, to file any formal objection to Reiss' two extra stipulations.)

Sept. 4 is Labor Day, which means many people will be off work, gathering at picnics or other festive gatherings. It could be a time for some extra cork-poppings this year.

We'll see.

Follow James M. Berklan @JimBerklan.

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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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