HHS Agreement Now in Effect: Medicare Will Cover Skilled Maintenance Care Even Without Patient Improvement

Edith Masterman, a Plaintiff in Lawsuit in which Medicare Agreed to end practice of denying Skilled Care & Maintenance Benefits in Home Health, Nursing Home and Outpatient settings for chronically ill patients unable to improve as a result of the careA U.S. Federal District Court in Vermont on January 24 approved a settlement agreement reached between the U.S. Department of Health and Human Services (HHS) and plaintiffs in a pending litigation matter, which may help all Medicare patients with chronic conditions who need skilled “maintenance care” at home, in nursing homes or in outpatient settings, going forward.

Pursuant to the Court-approved settlement agreement, HHS has agreed to end the “improvement standard” long applied in practice to deny Medicare benefits for skilled care and maintenance care to patients with chronic conditions incapable of improvement as a result of the care.

Under the “improvement standard,” Medicare benefits for home health care, nursing home care, and other outpatient care were denied when a patient with a chronic condition was unable to demonstrate that the care would result in an improvement of the patient’s condition, even though such continued care was medically necessary to avoid deterioration of the patient’s condition and further hospitalizations.

As previously reported by HelpingYouCare® (see HHS Agrees to End Practice of Denying Medicare Coverage for Skilled Care & Related Home Health & Therapy Due to Lack of Patient Improvement), on October 16, 2012, HHS entered into a settlement agreement with a group of chronically ill patients who sued HHS, challenging their denials of Medicare coverage for needed long-term care under the “improvement standard.”

The plaintiffs in that action, Jimmo vs. Sebelius, represented by the non-profit Center for Medicare Advocacy, along with Vermont Legal Aid, argued that the “improvement standard,” which was historically applied to deny Medicare coverage for so-called “maintenance care” when a patient’s condition was incapable of improvement, was inconsistent with the federal Medicare statute, and therefore illegal.

What the HHS Agreement Provides and What it Means for Medicare Patients

Without admitting or denying the plaintiffs’ allegations in the lawsuit, HHS settled the litigation by voluntarily agreeing to amend its Medicare Benefit Policy Manual, rules, and regulations, going forward, to end the “improvement standard” as a basis for denying Medicare coverage. This will apply, going forward, for all Medicare patients requiring such maintenance care along with skilled care in the home health, nursing home, or outpatient settings.

The settlement agreement was subject to Court Approval, which was granted by Federal District Court Chief Judge Christina Reiss on January 24, 2013, upon the request of both HHS and the plaintiffs. The Court retained jurisdiction to enforce the agreement in the future, as requested by the parties.

In a news release issued on January 24, the Center for Medicare Advocacy explained, “With the settlement now officially approved, the Centers for Medicare & Medicaid Services (CMS) is tasked with revising its Medicare Benefit Policy Manual and numerous other policies, guidelines and instructions to ensure that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatients settings. CMS must also develop and implement a nationwide education campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve.”

“It is important to note that the Settlement Agreement standards for Medicare coverage of skilled maintenance services apply now – while CMS works on policy revisions and its education campaign,” Judith Stein, Executive Director of the Center for Medicare Advocacy, emphasized in the Center’s news release.

“We’ve been hearing from beneficiaries who are still being denied Medicare coverage based on an Improvement Standard. Coverage should be available now for people who need skilled maintenance care and meet any other qualifying Medicare criteria. This is the law of the land – agreed to by the federal government and approved by the federal judge. We encourage people to appeal should they be denied Medicare for skilled maintenance nursing or therapy because they are not improving,” Ms. Stein added.

The Center for Medicare Advocacy makes available on its website (www.medicareadvocacy.org) self-help materials to help people needing assistance with appeals of Medicare benefit denials. The materials also include information on Medicare coverage rules for outpatient, home health, or skilled nursing facility care.

“It is exciting to know that by this time next year, Medicare policies will clearly state that coverage for skilled maintenance nursing and therapy is available, and that a beneficiary’s access to coverage does not depend on the potential for improvement, but rather on the need for skilled care,” Ms. Stein said in the Center’s news release.

“This moment is a culmination of two years of hard work, in conjunction with partners and advocates, to ensure that those who need health services covered under the Medicare law are not denied based on an illegal, outdated rule of thumb,” said Gill Deford, Litigation Director of the Center for Medicare Advocacy, counsel to the plaintiffs.

The Center for Medicare Advocacy invites Medicare patients who question a denial of Medicare coverage for benefits of the type described above to review the information on the Center’s website (www.medicareadvocacy.org), and to speak with a representative of the Center, by contacting Lauren Weybrew at lweybrew@douglasgould.com or by telephone at 914-833-7093.

The Center for Medicare Advocacy, Inc., indicates that it is a “national nonprofit, nonpartisan organization that provides education, advocacy and legal assistance to help older people and people with disabilities obtain fair access to Medicare and necessary health care.” The organization, which was established in 1986, “focuses on the needs of Medicare beneficiaries, people with chronic conditions, and those in need of long-term care.”

More Information

See the related HelpingYouCare® report on:

HHS Agrees to End Practice of Denying Medicare Coverage for Skilled Care & Related Home Health & Therapy Due to Lack of Patient Improvement

Visit the website of the Center for Medicare Advocacy Inc., or contact a representative of the Center via the contact information provided above, for a copy of the news release issued by the Center for Medicare Advocacy on January 24, 2013, along with further information about the Court’s approval of the HHS settlement agreement, and the now-ended “improvement standard.” The Center also provides further information about current rules governing when Medicare coverage of maintenance care is available, and may be able to provide help in appealing a denial of Medicare benefits under the new rules now in effect.

For more information about Medicare coverage and other financial and legal issues facing seniors and family caregivers, see the HelpingYouCare® resource pages on Legal and Financial Issues for Seniors & Caregivers, including:


Copyright © 2013 Care-Help LLC, publisher of HelpingYouCare®. All rights reserved.


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