Room for improvement

Providers remain uncertain how Jimmo will affect treatment for residents with skilled chronic care needs.
Providers remain uncertain how Jimmo will affect treatment for residents with skilled chronic care needs.

The historic Jimmo settlement was supposed to ensure more nursing home residents receive coverage for skilled therapies that help them maintain critical functions and quality of life.

But more than three years after the Centers for Medicare & Medicaid Services agreed to educate providers and its own contractors about inappropriate use of the so-called “improvement standard,” many therapists and facilities are still gun-shy about billing for services that help chronically ill patients who might not get better.

The Center for Medicare Advocacy has taken CMS back to court over the issue, claiming the agency failed to comply with the settlement terms of Jimmo v. Sebelius.

“There are too many people who are just not getting coverage because the education campaign was not adequate,” says Toby Edelman, a Center for Medicare Advocacy lawyer. “It was not sufficient … and we have a lot of new myths that have developed about Jimmo.”

Edelman's nonprofit organization teamed with Vermont Legal Aid to bring the original class action lawsuit on behalf of Glenda Jimmo, who is blind and has a partially amputated foot.

Even after the initial settlement, she was denied coverage by a Medicare Appeals Council. Only in 2014 — seven years after her initial denial — did Jimmo get paid for past services. 

Many providers were optimistic about the larger settlement in 2012, and some say their patients have benefited.

But most acknowledge CMS could do more to improve understanding of the kind of maintenance therapies patients are entitled to.

The agency hosted just one provider call on Jimmo; Edelman says more than 3,000 people participated, but only 18 were able to ask questions.

“It wasn't enough for all the varied providers in a variety of healthcare settings all across our nation,” says Linda Riccio, vice president of clinical services for Vertis Therapy. “That is why there is still confusion in our industry on this issue.”

A CMS spokeswoman said she could not comment on pending litigation.

In a 2013 fact sheet, CMS vowed to clarify that coverage “does not turn on the presence or absence of a beneficiary's potential for improvement from the therapy, but rather on the beneficiary's need for skilled care.”

CMS also promised to initiate accountability measures, including random sampling of skilled nursing patients to determine trends or problems. In its filings, CMA claims the agency did not make a sufficient effort to find out about, or respond to, systemic problems.

“CMS needs to ‘walk the walk' and not just ‘talk the talk' when it comes to adhering to not holding providers to the improvement standard,” says P.J. Rhoades, director of compliance and reimbursement for Creative Health Solutions.

Rhoades says he still sees denials for what therapists believe are qualifying services. Rejections sometimes state “a patient suffers from several chronic conditions, which would make significant gains in functional status unlikely.”

In his brief supporting CMA's latest legal move, Mike Cheek, senior vice president of finance, policy and legal affairs for the American Health Care Association/National Center for Assisted Living, argues the “one-and-done education effort by CMS” hasn't changed an ingrained culture of improvement expectations.

Positive strides

Martha Schram, president of Aegis Therapies, says Jimmo legitimized the idea that certain patients with complex conditions need therapeutic intervention, even when improvement is not anticipated.

Before, she says, therapists were in the conflicted position of identifying a need and fearing services would be denied. Aegis is now providing more maintenance therapy, none of which has been denied, she explains.

An important crux of the coverage is that the patient require “skilled” intervention. Any assistance that could otherwise be self-administered or provided by a non-skilled worker like a recreation assistant or CNA is not covered.

Leah Klusch, RN, BSN, executive director of the Alliance Training Center, says knowing and documenting the difference is critical for reimbursement. Most reviewers want the therapist to be providing hands-on care for the patient, or at least be in the same room while care is being provided by a therapy assistant.

Centrex Rehab CEO and President Kristy Brown cheered the Jimmo settlement. Up to 90% of the company's patients are in skilled nursing settings. Centrex taught operational and nursing departments about the updates and urged them to provide services to patients who might previously have been denied coverage by the MACs.

Brown says those with balance, contracture management and skin integrity issues are prime candidates.

“The primary thing our clinicians look at is the question: Would the given patient functionally decline without skilled services?” Brown says. “Some of the most common types of patient diagnoses include chronic neurological diseases [such as] Parkinson's disease, multiple sclerosis, pseudonuclear bulbar palsy, traumatic brain injury and lymphedema.”

Schram adds that those with abnormal muscle tone, pain, dysfunctional movement patterns and excessive fatigue affecting daily function might need daily adjustments that cannot be made by non-skilled personnel.

Fears persist

Yet some facilities and therapy providers still believe maintenance therapy will be denied.

Paul Riccio, vice president of finance and development for Vertis, says many nursing home administrators still see maintenance therapy “as a complete write-off,” especially for patients with complex or broad diagnoses like cardiopulmonary disease.

The best approach in all cases, he says, is to document what interventions the therapist provided, not just what the patient needed.

Klusch says part of the confusion is that in updating its manual as required by the settlement, the agency offered only one patient example. She and almost every provider contacted by McKnight's suggested more case studies or FAQs would help bring clarity to gray-area conditions.

Edelman and Paul Riccio say they've seen MACs in different regions make different decisions in similar cases. He suggests the agency allow difficult cases to go to the OIG's office for final say, mirroring how the Department of Health and Human Services handles other types of disputes.

The updated manual was a good first step, Klusch says, but people in the therapy world don't always crack it open. She notes many long-time employees missed the 2014 update and wouldn't know to look for it based on the limited education campaign. Edelman says even contract home nurses have refused to order skilled maintenance therapy, citing a 2013 manual.

Leading Age officials say their members want — and deserve — more from CMS.

“Many have expressed ongoing confusion as to how Jimmo will be applied, whether or not they will risk findings of fraud and misuse of rehab services, or how functional outcome measures will be impacted if providers are serving individuals with chronic skilled needs,” Cheryl Phillips, M.D., senior vice president of public policy and health services, wrote in a legal brief.

Edelman suggests the agency should hold more calls, breaking them down by provider type to get the right information to stakeholders.

She notes that the agency has done that with “all kinds of issues,” including multiple Open Door forums held to discuss the two-midnight rule.

Kris Mastrangelo, president and CEO of Harmony Healthcare, says initial outreach wasn't enough to educate the average therapist comprehensively. She says facilities should talk more about the issue at orientation and training sessions.

“What's frustrating is to see a decline in patients because all the focus is on short-term patients who are going home,” she says. Those who might spend the rest of their lives in a nursing facility still deserve to maintain skills like swallowing, balance and speaking — all of which would be factors in their long-term health outcomes.”

Edelman points out that skilled maintenance therapy is being undervalued. In one case, an MS patient received small amounts of therapy for balance issues, enough to prevent falls and to keep her from being rehospitalized. 

Future issues

Mastrangelo wants CMS to clarify its maintenance therapy standards and provide a disclaimer or explanation on how to treat patients with degenerative conditions.

Some therapists and facilities don't push patients to get therapy because they can't afford to “pay and chase,” Edelman says. A denial is the only way to institute an appeal; if services aren't rendered, that patient has no recourse.

Paul Riccio says the government has little incentive to clarify its standards as long as MACs are reimbursed based on how much money they take back and as long as those takebacks benefit the cash-strapped CMS.

“Medicare has no vested interest in helping this situation or providing clarification unless there is overwhelming public opinion to the contrary,” he says.