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⭒ CANHR Advocate Did You Know Articles

You Can Appeal Medicare Denials Based on “Failure to Progress/Improve” – Jimmo v. Sebelius

Adapted from materials prepared by the Center for Medicare Advocacy

Background

In 2013, a federal court approved the settlement agreement in Jimmo v. Sebelius, No. 5:11-CV-17 (D. Vt). The Jimmo Settlement confirmed that Medicare coverage of nursing home services must be determined on the basis of a beneficiary’s need for skilled care, not on the individual’s potential for improvement. Relevant chapters of the Medicare Benefit Policy Manual, now state that “[s]killed care may be necessary to improve a patient’s condition, to maintain a patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.” The Jimmo Settlement pertains to all Medicare beneficiaries, regardless of whether an individual has traditional Medicare or is in a Medicare Advantage plan.

Despite challenges with the Settlement’s implementation , beneficiaries can successfully appeal these unlawful denials of medically necessary care by taking appropriate steps during the appeals process to support their argument that skilled care should be covered under the Jimmo Settlement.

Action Steps

Medicare beneficiaries or their representatives should take the following steps:

  • 1. Request a copy of the beneficiary’s medical record. The nursing home must provide a copy or access to any documentation that it sends to Livanta (the California organization responsible for Medicare coverage appeals), including any records provided over the telephone. Use the medical record to support your argument that ongoing skilled care is medically necessary. Also, share the medical record with primary care professionals involved in the beneficiary’s care.
  • 2. Seek letters of support from primary care professionals, such as the community physician and physical therapist, involved in the beneficiary’s treatment. The letter should address the beneficiary’s condition, detail why skilled care is still necessary in order to continue improving or maintaining the beneficiary’s condition, and how the beneficiary’s condition would worsen if skilled care were not provided. Include the support letters with your appeal request.
  • 3. When requesting an appeal, explain why skilled care is still medically necessary, using the medical record and personal experience. If the beneficiary is improving, document the beneficiary’s progress and explain how terminating skilled care would negatively affect the beneficiary. If the beneficiary is truly no longer improving and needs maintenance therapy or nursing to slow or prevent further decline, then document why skilled care is necessary to maintain the beneficiary’s condition.
  • 4. Reference the Jimmo Settlement in your appeal request. Remind decision-makers that Medicare coverage cannot be denied solely on the basis of an erroneous improvement standard. Quote the Settlement language and provide a citation. Additionally, include official materials from CMS’s Jimmo-dedicated webpage, including fact sheets and manual chapter revisions with red italics that indicate Jimmo-related changes.

Conclusion

While challenging a Medicare denial may seem daunting, beneficiaries can be successful by taking appropriate steps to support their claim in light of the Jimmo Settlement. For more information about the Jimmo Settlement and additional resources, please visit www.MedicareAdvocacy.org.