The mythical standard

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Steven Littlehale
Steven Littlehale

The Jimmo vs. Sebelius case, filed in January 2011 in federal district court in Vermont, has now been settled. The class action lawsuit challenged Medicare's use of an “improvement standard” in determining medical necessity for skilled nursing services and outpatient therapy.

The Jimmo agreement confirms that skilled nursing and therapy services needed to maintain an individual's condition are allowed to be covered by Medicare in a skilled nursing facility, at home, or on an outpatient basis.

The “improvement standard” is mythical in that it does not appear in Medicare statute or regulations. It exists only as a de facto interpretation that has been used by Medicare contractors for years to deny or discontinue care.

What does this mean to skilled nursing providers? Under the settlement, coverage of therapy to perform a maintenance program does not rely on the presence or absence of a beneficiary's potential for improvement, but rather on the beneficiary's need for skilled care. Providers who have been using it or the lack of “improvement” to deny access to skilled services will need to educate staff.

When “improvement” is removed from consideration, providers are left asking if the needs of the beneficiary meet skilled criteria, and require the skills of the licensed professional to safely deliver the service. 

Maintenance, as well as the prevention of future decline, is acceptable as a goal, as long as the beneficiary meets skilled care requirements, officials note. 

The settlement requires the Centers for Medicare & Medicaid Services to clarify the details in several manuals, and in instructions to FIs, MACs and providers. The usual communication vehicles such as manuals, training calls, Open Door Forum calls and Medlearn Matters will be used, per the settlement. 

When all is said and done, providers will once again consider the need for skilled care per the regulations, without worry that lack of progress will result in denial of benefits. 


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