Judge: CMS Must Clarify When Rehab is Covered by Medicare

Home health agencies may be worried about offering services to patients whose conditions are not improving. But home health and other providers need to be reassured that they can in fact bill Medicare for these types of services and expect payment, a federal judge recently ordered.

Indeed, the Centers for Medicare & Medicaid Services (CMS) has only about two months to more clearly communicate this message about “maintenance therapy” to providers, under a court order issued Aug. 17 by Chief Judge Christina Reiss of U.S. District Court in Vermont.

Reiss is overseeing the high-profile Jimmo case, which was settled in January 2013. That settlement determined that a so-called “improvement standard” for Medicare did not actually exist in statute. This means that many beneficiaries, such as those who have experienced a stroke or who have ALS, are entitled to a receive care that maintains but does not improve their condition. For years, providers and Medicare authorities had believed that only services leading to improvement were eligible for coverage.


It appears that the “improvement standard” is so well-entrenched that many providers still believe it exists, and many of the Medicare contractors tasked with administering payment do as well. At least, that’s the case that the plaintiffs in the Jimmo case made to Judge Reiss, pointing to continued denials of coverage based on the standard.

The ongoing issues suggest that the educational campaign mandated under the settlement has not been effective, the plaintiffs argued. They pointed to a survey of sixty providers, advocates, and other stakeholders, which revealed that 46% were not aware of the educational push from CMS on this issues. The plaintiffs marshaled other evidence as well, including input from someone adjudicating Medicare appeals.

“Plaintiffs submit several declarations, including one from a retiredadministrative law judge from the Office of Medicare Hearings and Appeals who avers that after the Jimmo settlement, the Improvement Standard continued to be reflected in the decisions appealed to him, and that the Secretary has ‘paid only lip service’ to the court’s Judgment and has ‘not effectively implemented the letter or the spirit of the Jimmo settlement,’” the Aug. 17 court order reads.


The arguments persuaded Reiss that CMS in fact has been deficient, and she ordered the agency to propose corrective action within 45 days.

Among the potential educational materials that providers might expect to see: clearer language on the CMS website about Medicare reimbursement for maintenance services, and more well-informed CMS representatives answering questions about maintenance services on the 1-800-MEDICARE line. These actions, along with outreach to beneficiaries, would help CMS hold up its end of the settlement and comply with the latest court order, Judith Stein, executive director of consumer advocacy organization the Center for Medicare Advocacy (CMA), told Bloomberg BNA. CMA was among the plaintiffs’ representatives in the Jimmo case.

Written by Tim Mullaney

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