Federal Court Orders CMS to Fix “Maintenance Coverage” Policy Education Due to Noncompliance with Jimmo v. Burwell Settlement

Dan Ciolek

A U.S. District Court Judge in Vermont filed a decision on February 1 ordering the Centers for Medicare and Medicaid Services (CMS) to implement a Corrective Action Plan to improve education related to the coverage of skilled therapy and nursing services needed to maintain health and function, or “Maintenance Coverage”.  This decision impacts beneficiaries covered by Medicare Parts A & B, as well as and Medicare Advantage, including those residing in nursing facilities and assisted living centers.   

This decision follows from an August 17, 2016 decision in Jimmo v. Burwell that ruled that CMS did not comply with part of the January 21, 2013 Jimmo v. Sebelius Settlement Agreement.  The initial settlement included an agreement that added a “Maintenance Coverage” standard, and CMS agreed to update their benefit policy and coverage manuals, engage in a nationwide educational campaign, and be subject to other monitoring activities to address disputes for three years.  On March 1, 2016, the plaintiffs filed a motion to enforce the Settlement Agreement arguing that the CMS educational campaign “was so confusing and inadequate that little had changed,” and that beneficiaries with chronic and progressive conditions under Medicare Part A, Part B and Medicare Advantage, were being denied access to and coverage for skilled therapy and nursing services to prevent or delay decline. 

In support of the plaintiffs, AHCA/NCAL submitted a legal declaration supporting the contention that the CMS education effort has not been “…adequate, timely, or complete.”

In the current decision, the judge ruled that the CMS Corrective Action Plan, which must be certified as compliant by September 4, 2017, include the following requirements:

1.      CMS publish a new web page dedicated to the Jimmo Settlement Agreement;

2.      CMS publish a Corrective Statement disavowing an “Improvement Standard”;

3.      CMS post Frequently Asked Questions (FAQs);

4.      CMS develop and implement training for Medicare Contractors and Medicare Advantage plans making coverage decisions, and;

5.      CMS conduct a new National Call to explain the correct “Maintenance Coverage” policy.

Additionally, since the plaintiff’s and CMS could not agree on the language to be included in the “Corrective Statement” language to be published, the judge ordered the following statement, based mostly on suggested plaintiff language, to be published.

The Centers for Medicare & Medicaid Services reminds the Medicare community of the Jimmo Settlement Agreement (January 2014), which clarified that 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). Specifically, the Jimmo Settlement adopted a "maintenance coverage standard" for both skilled nursing and therapy services:

“Skilled nursing services would be covered where such skilled nursing services are necessary to maintain the patient's current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided.

“Skilled therapy services are covered when an individualized assessment of the patient's clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist ("skilled care") are necessary for the performance of a safe and effective maintenance program. Such a maintenance program to maintain the patient's current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program.