Guest Columns

Have you met Jimmo's stepbrother Jimmo?

Steven Littlehale
Steven Littlehale

In January 2013, a final settlement was reached in a case tried before the U.S. District court in Vermont. That case is known as Jimmo v. Sebelius. The settlement ruling found that no “improvement standard” could be applied when determining whether or not a Medicare beneficiary was receiving care at a skilled level.

Also, under the terms of the settlement, the Centers for Medicare and Medicaid Services was charged with revising the Medicare Beneficiary Program Manual (MBPM) and any other resources or training materials to reflect the change. The agency also had to develop a nationwide training campaign for anyone making determinations about skilled care coverage. The timeline was one year.

Fast forward to February 2016 and a new case, Jimmo v. Burwell (Jimmo's “stepbrother” Jimmo), gets decided, and the finding of the court was that CMS was didn't comply satisfactorily with the terms of the original Jimmo settlement. Just like when skilled nursing facilities are found out of compliance, a Corrective Action Plan was required.

That plan, due to be implemented in September, calls for CMS to enhance its educational outreach efforts by developing a new Jimmo-specific webpage with resources, FAQs and additional training for Medicare contractors.

I can see the eye rolls now — and some of you might even get in touch and ask, “So what?” — and that's probably because CMS failed to do what it was supposed to do back in 2014: educate providers and others about the original Jimmo case.

No longer can a Medicare claim be denied because a beneficiary did not make progress during his or her treatment. Remember all the training therapists had to remove the word “plateaued” from their vocabulary?  Now, the beneficiary's potential for improvement does not play a role in receiving Medicare benefits. However, the specific criteria that qualify someone for skilled care remain unchanged.

It's important to keep in mind that skilled care may be necessary to improve, maintain or prevent decline in a resident current condition, but it's not a presumption. Not every resident who needs ongoing maintenance therapy will meet skilled care requirements.

With the recent release of a 2013 CMS data file the fact that Medicare payments for Rehab Ultra High and Very High categories topped $22 billion has not been lost on anyone. Add to that the fact that 1 in 5 SNFs reported therapy minutes at or within 10 minutes over the minimum threshold required to classify into the grouper 75% of the time.

These are the types of patterns that cause concern.

Let's face it: Therapy utilization will be as scrutinized as much as it ever has been, and though the “improvement standard” has once again been deemed deceased, therapists still need to substantiate their rationale for evaluating and providing ongoing treatment — and the reason for discontinuing treatment to residents and their families (without using “failure to improve” as a reason).

Remember the adage, “The more things change, the more they stay the same”? Well, it is as true in this case as it ever was — the determination of medically reasonable and necessary skilled services will rest on the documentation in the medical record, just like it always did.

Steven Littlehale is a gerontological clinical nurse specialist, and executive vice president and chief clinical officer at PointRight Inc.

Guest Columns

Guest columns are written by long-term care industry experts, ranging from academics and thought leaders to administrators and CEOs.

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