1. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 1 CENTER FOR MEDICARE ADVOCACY, INC. ACADEMY OF SPECIAL NEEDS PLANNERS Session 4 An Inside Look at the Jimmo vs. Sebelius Medicare Settlement Margaret Murphy March 22, 2013

2. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 2 PRESENTATION  Jimmo v. Sebelius Update  Practical Implications for Skilled Nursing Facilities (SNFs), Home Health and Outpatient Therapies  Questions & Answers

3. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 3 Jimmo vs. Sebelius, Civil No. 5:11-CV-17 (D. VT. 1/18/2011)  Federal judge approved Settlement and certified nationwide Class at Fairness Hearing on 1/24/ 2013  Federal Class Action filed 1/18/2011to eliminate Improvement Standard  Settlement Agreement reached with govt attys on 10/16/2012  Plaintiffs: 5 individuals and 6 organizations Alzheimer’s Association National MS Society National Committee to Preserve Social Security & Medicare Paralyzed Veterans of America Parkinson’s Action Network United Cerebral Palsy

4. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 4 Jimmo vs. Sebelius, Civil No. 5:11-CV-17 (D. VT. 1/18/2011) (Cont’d) CMS statement about Jimmo on January 28, 2013: “We are working to implement the terms of the settlement and ensure that beneficiaries have access to the full range of services that they are entitled to under the law. The settlement will clarify existing policy that claims should not be denied solely based on a rule-of-thumb determination that a beneficiary's condition is not improving." From CMS spokesman Brian Cook in an email message to Congressional Quarterly

5. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 5 Jimmo vs. Sebelius, Civil No. 5:11-CV-17 (D. VT. 1/18/2011) (Cont’d) U.S. Dept. of Health and Human Services (HHS): “Under this settlement, Medicare policy will be clarified to ensure that claims from providers are reimbursed consistently and appropriately and not denied solely based on a rule-of-thumb determination that a beneficiary’s condition is not improving.” By Fabien Levy, spokesman for the U. S. Dept. of Health and Human Services (quote from The New York Times at: http://newoldage.blogs.nytimes.com/2013/02/04/therapy-plateau-no- longer-ends-coverage /) http://newoldage.blogs.nytimes.com/2013/02/04/therapy-plateau-no- longer-ends-coverage /

6. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 6 What Jimmo Settlement Means: No Denials Based On Improvement Standard  Coverage does not turn on the presence or absence of potential for improvement but rather on the need for skilled care  Services can be skilled and covered when: Services are needed to maintain, prevent, or slow deterioration So long as the beneficiary requires skilled care for services to be safe and effective Jimmo Settlement, §IX.6 and §IX.7

7. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 7 What Jimmo Settlement Means: Revision of CMS Manuals See CMA website for Jimmo Settlement info: http://www.medicareadvocacy.org/hidden/highlight-improvement- standard  CMS to revise Medicare policy manuals, guidelines, and instructions for SNF, HH & Outpatient (OPT) Therapies (PT, ST, OT)  “Clarify” skilled maintenance therapies and nursing are covered by Medicare  Eliminate conflicting CMS policies

8. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 8 What Jimmo Settlement Means: CMS Educational Campaign  Within 1 year of Order: All policy revisions completed, CMS Educational Campaign completed  Explain Settlement and new policies to: Providers, Medicare Contractors, Medicare Adjudicators, Patients, Caregivers  CMS Website, National Calls, Open Door Forums, written materials & trainings Policy revisions and Ed. Campaign: Review/Input from Ctr Medicare Advocacy & Vt Legal Aid

9. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 9 What Jimmo Settlement Means: Accountability and Reviews  CMS to review random samples of QIC decisions & address errors raised in reviews Meet regularly with Plaintiffs’ counsel to correct errors in individual cases  Individuals only may request “Re-review” of Medicare’s decisions final after 1/18/2011 For denials based on Improvement Standard Not required to exhaust all levels of appeal (denial on MSN sufficient)  Court retains jurisdiction

10. Jimmo Clarifies Proper Standard  Is skilled professional needed to ensure nursing or therapy is safe and effective?  Is a qualified nurse or therapist needed to provide or supervise the care?  Regardless of whether the skilled care is to improve, maintain, or slow deterioration. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 10

11. FAQs re Jimmo Settlement  Can Jimmo help now? Yes! Jimmo clarifies the current law. Use the Settlement Agreement & CMA’s self-help packets. See our website: medicareadvocacy.org  Is Jimmo limited to certain diagnoses, diseases, conditions? No! Jimmo applies to anyone who needs skilled care.  What types of services are covered? Skilled nursing or skilled therapies. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 11

12. FAQs re Jimmo Settlement cont’d  To which care settings does Jimmo apply? Skilled Nursing Facility, Home Health, Outpatient Therapy. If a person needs skilled nursing and/or therapy in these settings, Jimmo applies.  Examples of skilled nursing: W ound care; observation & assessment of lung congestion  Examples of skilled therapy: Therapy for an ALS patient with breathing difficulty; ROM therapy for a person with MS and contractures www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 12

13. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 13 NO USE OF “RULES OF THUMB” Should not be used to deny coverage including: Lack of Restoration Potential 42 CFR §409.32(c); 42 CFR §409.44(b) - Nursing 42 CFR §409.44(c)(2)(iii)(B) and (C) - Maintenance Therapy See also comments in 75 Federal Register 70395 Condition is chronic, terminal, or expected to last long time 42 CFR §409.44(b)(3)(iii)

14. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 14 EXAMPLES OF “RULES OF THUMB” Individual or condition is “stable” or “chronic” Condition will not improve Lack of “restoration potential” Care is needed for long period of time Unless a legal limit exists: SNF 100 days; Outpatient PT/ST and OT annual $1,900 limit (exceptions to “caps”); Home Health – no duration of time limits

15. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 15 INDIVIDUAL ASSESSMENT REQUIRED  Do not assume Medicare is unavailable based on: “Rules of Thumb” Particular diagnosis Lack of restoration potential Treatment norms  Base decision on individual’s unique condition & needs “The unique clinical condition of a patient may require the specialized skills of a qualified therapist to perform a safe and effective maintenance program….” 42 CFR §409.44(c)(2)(iii)(C)

16. Jimmo vs. Sebelius  Effects of Jimmo Settlement in Various Care Settings  Next Steps … www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 16

17. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 17 SKILLED NURSING FACILITY STILL NEED TO MEET SNF COVERAGE CRITERIA  3 Day prior hospital stay (sometimes waived by Medicare Advantage Plans)  Daily skilled care required to qualify for Medicare coverage: 5 days/week therapy (PT, OT, ST) or 7 days/week nursing or nursing and therapy combined  So – What is considered skilled?

18. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 18 WHAT IS SKILLED CARE? … so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel. 42 CFR § 409.32(a)

19. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 19 HOME HEALTH COVERAGE 42 USC §1395x(m)  Services must be ordered by a physician  Under a written plan of care  Beneficiary must be “confined to home” (homebound) – does not mean bedbound!  Beneficiary must require skilled services No duration of time limitation No Co-Payments

20. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 20 HOME HEALTH COVERAGE 42 CFR § 409.40 et seq Skilled care requirement: Intermittent skilled nursing services As little as 1 x / 60 days (recurring) or daily for predictable period of time or Skilled PT or ST services and, in some circumstances, OT services

21. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 21 HOME HEALTH (Cont.) Added Benefit of Skilled Services Medicare Coverage of Other Home Health Services: If Medicare covers Skilled Nursing or PT, ST, or continuing OT, then Coverage also available for “dependent services” Home health aides Social worker, supplies

22. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 22 OUTPATIENT THERAPIES MEDICARE PART B  Yearly dollar payment cap, indexed annually ($1,900 / year 2013) PT and ST services ($1,900 combined) Separate annual cap for OT services ($1,900 OT alone)  Can seek “Exception” to caps  Caps now apply to therapy services received in hospital outpatient department

23. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 23 MEDICARE PART C (Medicare Advantage Plans (MA Plans))  Private Medicare plans  Provisions for delivery systems, not coverage  Coverage criteria required to be the same as those in original Medicare  Actual coverage of services not the same in practice (but should be…)  May offer more coverage than original Medicare, but not less

24. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 24 What to Do if Medicare Coverage Denied After Jimmo?  Use Jimmo Settlement and CMA self-help packets to educate provider & continue services  Dr. is best ally to order care & keep services in place  If denied Medicare coverage: Appeal, Appeal, Appeal Expedited Appeal – See instructions in Notice provided If denied at first level, appeal again for Reconsideration Strict time limits, but just a phone call from patient or caregiver Medical provider will forward medical records for review Standard Appeal – continue & request ALJ hearing

25. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 25 SUMMARY  Restoration potential is not the deciding factor  Medicare should not be denied at any care level because the beneficiary has a chronic condition or needs services to maintain his/her condition  “Individualized assessments” are required  Rules of thumb should not be used to determine access to coverage or care

26. Questions? www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 26

27. www.medicareadvocacy.org Copyright © Center for Medicare Advocacy, Inc. 27 CENTER FOR MEDICARE ADVOCACY CT: (860) 456 - 7790 DC: (202) 293 - 5760 _____________ www.medicareadvocacy.org webinar@medicareadvocacy.org