MEDICARE UPDATE: DENIAL OF SKILLED NURSING CARE BASED ON “IMPROVEMENT STANDARD” IS NO LONGER AUTHORISED

In a landmark decision a federal district court in the class action case of Jimmo vs. Sibelius has entered a proposed settlement order which finds that it is improper for Medicare to deny skilled nursing care services to applicants based on the fact that their condition is not likely to improve. (a full report can be found here: http://www.medicareadvocacy.org/wp-content/uploads/2012/12/Notice-of-Proposed-Settlement-Final-PDF-00011763.pdf)

This ruling will have an immediate benefit for all persons covered by Medicare who were denied skilled nursing facility (SNF), home health (HH) or outpatient therapy (OPT), services because of a lack of improvement potential. Affected persons should consider re-applying for benefits at this time. This change will be reflected in a revised Medicare Benefit Policy Manual which will be published after final approval of the proposed settlement by the court. A Fairness Hearing to determine whether to grant final approval is scheduled for January 24, 2013, and it is expected that the court will grant final approval after this hearing.

HOW JIMMO CAN HELP RECIPIENTS OF HABILITATION SERVICES

This ruling may also provide support for Arizona recipients of ALTCS habilitation services who have had their services cut by DDD case workers because the recipient was not demonstrating improvement in reaching their stated goal. As families with members who suffer from autism and other disabilities know, one of the primary benefits of habilitation is the retention of learned skills. Skills that were gained after years of effort can easily be lost through regression when educational efforts are discontinued. Thus by analogizing from Jimmo (above), it is improper to apply an “improvement standard” to habilitation services. The state is actually hurt financially when a disabled person regresses, since the self-help skills which are lost end up being replaced by additional state-supported care. This argument was an important consideration for the court’s decision in Jimmo, where it was demonstrated that patients who are denied skilled nursing services end up requiring full time nursing home care much sooner than if the services were provided, regardless of the lack of improvement.

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