Man practicing walking during physical therapy

Ten years after a landmark court case determined patients do not need to regain function to maintain access to skilled nursing care and therapy services, advocates warn that elderly patients and those with disabilities continue to be denied care based on a non-existent “improvement standard.”

In early 2013, the Center for Medicare Advocacy and Vermont Legal Aid settled a federal class action lawsuit on behalf of Glenda Jimmo, a blind woman with diabetes who had been denied Medicare coverage for home health care because she wasn’t improving. The agreement was supposed to ensure coverage and access to care for millions of other beneficiaries, but that hasn’t always been the case.

“Implementation is not what we wish it was, lo these 10 years later,” said Judith Stein, CMA’s executive director, on a Wednesday webinar calling for sustained action. “The most often heard reason for being denied Medicare coverage for necessary care ordered by a doctor or authorized practitioner was and has been, and I’m afraid still is, that the patient has to improve in order to get Medicare coverage.” 

In fact, federal law has long made clear that skilled nursing can be used to “prevent deterioration or preserve current capabilities,” Stein said. But in many practical situations, that’s not what was happening on the ground and the myth persists as a barrier to coverage.

As a result of Jimmo vs. Sebelius, the Centers for Medicare & Medicaid Services was required to ensure access to skilled nursing and therapy services would be supported in nursing homes, home health and outpatient settings.

CMS revised its Medicare policy manuals to reflect that clarification, and later created an educational website after a federal judge found in 2016 that the agency still hadn’t done enough to explain maintenance coverage. 

In late 2021, CMS sent out another reminder on the issue, as denials continued to use rules of thumb about improvement, rather than reviewing individual patient’s need for care to avoid deterioration.

But the bottom line is that maintenance nursing and therapy can be provided indefinitely under Medicare, said Michael Benvenuto, project director of the Elder Law Unit at Vermont Legal Aid.

Renee Kinder, executive vice president of clinical services at Broad River Rehab, noted the importance of teaching new therapists about the Jimmo standard, and helping them understand the importance of ongoing therapy to affected patients.

“Maintenance can be complicated for therapists to wrap their head around,” said Kinder, explaining that many come into the business focused on rehabilitation and restoration. “As a call to action, I think there’s a level of accountability for payers, but also for us as therapists to do our due diligence when it comes to the care that we provide, that it’s following evidence-based practice and that we’re documenting accordingly.”

Therapists should be noting what they did during a session to help a patient maintain function or slow decline through alterations, adjustments or modifications, Kinder added.

“When it comes to the payer perspective, when they review our care, they say, ‘Oh, that’s skilled. There’s no one else that could have provided that level of complexity and sophistication,’” she said.

Dennis Knoff, a vice president with Pinnacle Senior Care, said his home health agency has found success with payers since the Jimmo decision, but it has taken work, especially when it comes to “legacy” professionals. 

Pinnacle has found that providing appropriate therapy for older patients with significant comorbidities actually reduced costs over time, a strategy that providers should embrace not only because CMS has affirmed its policies, but because it makes good business sense too.

“One of the best selling points was outcomes,” Knoff said. “We had people that would end up in the hospital frequently after they had been discharged. So what would happen if we stayed in and provided maintenance therapy? All of a sudden, these people weren’t going back to the hospital. They weren’t in the emergency department. We were successful and the patient was happy.”

The company participates in an accountable care organization, in which better performance metrics can lead to better pay. Knoff said relying on maintenance therapy became a win-win, producing savings for Medicare as well as helping patients maintain independence.

Still, Knoff said, payment issues have resurfaced over the last few years, with one specific Medicare intermediary denying coverage and then the rise of Medicare Advantage plans.

“They should abide by the same Jimmo ruling, but we’re finding difficulties there, and as you might imagine, the red tape of trying to get certain companies to change their rules is challenging, to say the least,” Knoff said.

“In law, Medicare Advantage plans are required to provide at least as much coverage as traditional Medicare,” Stein added. “The Jimmo settlement definitely applies to Medicare Advantage. … We have to make that known as part of our follow-on action.”