Most of us hope that if we become injured, disabled, or too old to care for ourselves, we will be cared for at home. Many studies suggest that it is more cost-effective to care for people who are disabled and elderly in their homes rather than in nursing homes, and advocates for these populations often discuss an emerging civil right to remain at home. Unfortunately, as a class action filed in the District of Vermont on January 18, 2011, by the Medicare Advocacy Project of Vermont Legal Aid and the Center for Medicare Advocacy makes clear, false hurdles are erected throughout the Medicare system that make it difficult for patients to receive care in their homes.
Under the United States Supreme Court’s 1999 ruling in Olmstead v. L.C., patients in nursing homes and other institutions who can safely and appropriately live in their communities are entitled to do so. Finding appropriate service providers and obtaining Medicare coverage remain challenging for many patients, however, and one of the main impediments standing between patients and living at home is the Medicare improvement standard.
As Gill Deford, Margaret Murphy, and Judith Stein of the Center for Medicare Advocacy discussed in their January-February 2010 Clearinghouse Review: Journal of Law and Policy article, How the “Improvement Standard” Improperly Denies Coverage to Medicare Patients with Chronic Conditions, Medicare beneficiaries with chronic conditions who need skilled care—including home health care—are often improperly denied care because of the myth “that coverage of skilled care requires a beneficiary to be improving.” Under this “phony coverage standard” that appears nowhere in the Medicare statute or its implementing regulations, Medicare recipients suffering from a wide array of physical and mental impairments are denied the nursing care, physical therapy, occupational therapy, and speech therapy that they need to remain stable and avoid further deterioration. This standard is routinely applied to Medicare recipients living in hospitals and nursing homes, as well as those who live independently, even when their doctors make it clear that skilled care is necessary to keep the patients from deteriorating. The problem stems, in large part, from unclear Medicare manual provisions that are sometimes more restrictive than the actual regulations, as well as from ongoing confusion regarding the difference between “skilled care,” which is covered by Medicare, and “custodial care,” which is not.
A new class action, Jimmo v. Sibelius, was filed against the U.S. Secretary of Health and Human Services on January 18 by five individual plaintiffs and five national organizations, including the National Multiple Sclerosis Society and Paralyzed Veterans of America. The plaintiffs brought the suit on behalf of a nationwide class of Medicare beneficiaries who have been or will be harmed by the improvement standard. The suit challenges Medicare’s continued use of the improvement standard to deny benefits to Medicare recipients with chronic conditions. The plaintiffs specifically argue that the improvement standard is not included in Medicare law and regulations and, therefore, should not be a consideration when decisions are made about patients’ benefits. (An amended complaint, adding the Alzheimer’s Association, United Cerebral Palsy, and a sixth individual beneficiary as plaintiffs, was filed on March 3).
Jimmo v. Sibelius follows a recent flurry of legal and regulatory activity around the Medicare improvement standard. First, in the fall of 2010, two federal courts examined and rejected the improvement standard. As Robert Pear wrote in the New York Times, federal judges in Pennsylvania and Vermont held that “skilled care may be reasonable and necessary and covered by Medicare even if the person’s condition is stable and unlikely to improve.” The plaintiff in the Pennsylvania case, Papciak v. Sebelius, resided in a nursing home, where she received skilled nursing care, physical therapy, and occupational therapy following hip replacement surgery. Medicare eventually denied coverage for these services, however, because she had “made only minimal progress in some areas, had regressed in other areas, and had been determined to have met her maximum potential for her physical and occupational therapy.” According to Medicare, plaintiff’s lack of improvement meant that plaintiff was receiving “custodial care,” not “skilled care.” By contrast, in Anderson v. Sebelius, the plaintiff was receiving home health services to stay stable after her second stroke and address a variety of other health problems, including hypertension, slurred speech, and type II diabetes. Medicare ultimately denied her coverage as well, claiming the services did not meet Medicare’s coverage criteria. In both cases, albeit in slightly different language, the judges held that Medicare improperly relied upon whether or not the plaintiffs had the potential to improve when denying them coverage. (Coincidentally, the same judge who issued the Anderson decision will preside over Jimmo.)
Next, on January 1, 2011, new Medicare regulations promulgated by the Centers for Medicare and Medicaid Services became effective. As the Center for Medicare Advocacy announced, the new rules make it clear that “skilled care does include services that are intended to maintain a person’s condition and that no ‘rules of thumb’ should be used to deny care—including rules that require restoration potential.” The new regulations state that decision-makers should review “accepted standards of clinical practice and . . . consider whether a professional is needed for the service to be safe and effective for the particular beneficiary.” Patients and their advocates should not be overly optimistic about the new regulations, however. As Gill Deford noted in a press release about the Jimmo class action, the new regulations are meaningless if service providers ignore them. Deford said “[w]hile we thank CMS for their recent clarification of Medicare coverage for home health services—including physical therapy, occupational therapy and speech-language pathology services—the clarification does not undo conflicting policies and practices.”
Ironically, as Dr. Nicholas LaRocca of the National Multiple Sclerosis Society stated in the Center for Medicare Advocacy press release about the Jimmo case, Medicare’s denial of benefits for services such as home health care and physical therapy can end up being more expensive for the government than providing appropriate therapeutic care. These types of services “help avert physical and cognitive deterioration or maintain optimal functioning,” Dr. LaRocca said. “This deterioration often leads to more intense, more expensive services, hospitalization or nursing care.”
Hopefully, the Jimmo class action will put an end to the use of the improvement standard and move America’s elderly and disabled one step closer to a civil right to live at home. If you, a family member, or a client has been denied Medicare coverage because your health condition is not improving, you may have been denied coverage unfairly. For information about your Medicare rights, contact the Center for Medicare Advocacy at: improvement@medicareadvocacy.org
There is an intense debate over Rep. Paul Ryan’s (R. WI) proposal to scrap Medicare and turn it into a voucher program shifting costs to seniors, a debate that became even more intense when it was passed by the Republican-controlled House of Representatives. The Senate has not passed it, and the President has registered his opposition. The American people are also firmly opposed. 
