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The 2013 settlement agreement reached in the Jimmo v Sibelius case was supposed to have debunked the "improvement standard" myth once and for all—provided, of course, that the Centers for Medicare and Medicaid Services (CMS) did the debunking and educated Medicare contractors and others on the importance of stopping inappropriate coverage denials.

Last year, a federal judge ruled that CMS fell short on those efforts. Now that same judge has spelled out just what CMS must do to make things right—and by when.

In a ruling released February 2, US District Court Judge Christina Reiss told the Secretary of Health and Human Services that CMS has until September 4 to complete a series of steps that would make it clear to Medicare contractors, Medicare Advantage plan administrators, and others that the so-called "improvement standard"—the idea that Medicare coverage can only be extended if that care will actually improve the patient's condition—is a fallacy.

These education efforts were supposed to have taken place after the 2013 Jimmo settlement around the improvement standard—a standard that CMS claims it never explicitly supported yet somehow became common practice among contractors. In August, 2016, Reiss found that the postsettlement CMS efforts "reflect[ed] virtually no effort to educate participants" and ruled that "corrective action" should be taken at once. After CMS and plaintiffs failed to agree on the specifics of a plan, Reiss issued the most recent ruling that lays out just what CMS needs to do.

The decision requires CMS to take the following steps:

  • Publish a new webpage specifically related to the Jimmo settlement
  • Publish a statement that disavows the improvement standard
  • Publish a list of frequently-asked-questions on the issue
  • Develop and administer trainings for providers and adjudicators
  • Conduct a national conference call to clarify the coverage policy

In addition, Reiss sided with the opponents of CMS when it came to the exact wording of the statement that would be issued. According to the ruling, CMS will be required to use verbatim language that includes the words "the Medicare program will pay for skilled nursing care and skilled rehabilitation services when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met)."

APTA actively supported efforts to press for better education by CMS and provided a declaration to the Center for Medicare Advocacy, 1 of the plaintiffs representing Medicare beneficiaries. Additionally, APTA maintains a webpage on skilled maintenance that includes links to a podcast series, a recorded webinar, and several pages of frequently asked questions.

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