Providers Show Inconsistency in Providing Skilled Care in Wake of Jimmo Decision, CMS Silence

Last year’s settlement between Medicare beneficiaries and HHS regarding the continuation of skilled care services for Medicare beneficiaries whose health status has plateaued or declined is likely to have inconsistent application over the next year, according to one of the attorneys involved in the settlement. Speaking at the American Health Lawyers Association Institute on Medicare and Medicaid Payment Issues in Baltimore on March 21, David Lipschutz, an attorney with the Center for Medicare Advocacy, the group that successfully pursued the settlement agreement with HHS, noted that some providers are waiting for official changes in CMS policy before they change their standard of care for patients needing skilled services.

For years, Lipschutz said, CMS, its claims processors, and providers such as skilled nursing facilities (SNFs), home health agencies (HHAs), and outpatient therapy providers have operated under a “myth of improvement,” under which Medicare would stop coverage for skilled care if the patient showed no improvement in health status.

Over the years, several individual beneficiaries have successfully litigated to continue to receive skilled care even when the patient’s health status plateaued, but since CMS never appealed any of these decisions at the circuit court level, none were ever considered precedential for all Medicare beneficiaries.

The settlement agreement (Jimmo v Sebelius) was reached in October 2012 and was approved by a federal judge at the end of January 2013.

Existing Policy

Lipschutz noted that under existing Medicare policy, skilled care coverage does not depend on the presence or absence of potential for improvement but merely on the need for skilled care. The key questions that providers need to ask include—

  • Is a skilled health professional needed to ensure nursing or therapy is safe or effective? and
  • Is a qualified nurse or therapist needed to provide or supervise the care?

These questions are valid regardless of whether the skilled care is necessary to improve, maintain, or slow deterioration in a patient’s condition.

 Requirements for CMS

Lipschutz explained that in the wake of the settlement CMS must do the following over the next year (1) revise all relevant CMS Manuals, guidelines and instructions for SNFs, HHAs, and outpatient therapists to clarify that skilled care is covered by Medicare and also to eliminate any conflicting CMS policies; (2) undertake an educational campaign so providers, contractors, and beneficiaries are clear about the skilled care policy; and (3) establish a system of accountability and reviews to determine if providers and contractors are following the correct policy.

No Official CMS statement

Lipschutz expressed disappointment that since the settlement was finalized in January CMS has made no official statement about it, which has led to inconsistencies in how eligible patients receive needed skilled care. He presented two examples of how SNFs have reacted to the settlement. In one case, an SNF stopped providing skilled care to a beneficiary because it said that under the “improvement standard” still enforced by CMS contractors after the settlement, it still was not obligated to provide the care if the patient was not improving. In contrast, a different SNF, which had, in the wake of the settlement, determined that skilled care should be continued for a patient, placed a copy of the Jimmo settlement in the patient’s file in case that care decisions was ever challenged by a Medicare contractor.