CMS Revises Benefit Policy Manual to Comply with Jimmo Settlement Agreement

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CMS has issued revisions to the Medicare Benefit Policy Manual to comply with the settlement agreement approved in the nationwide class action lawsuit, Jimmo vs. Sebelius.  In Jimmo, the plaintiff class alleged that Medicare contractors were denying claims for skilled care patients based on their lack of restoration potential, the so-called “Improvement Standard,” even though the patients did in fact require a covered level of skilled care in order to prevent or slow further deterioration in clinical condition.  Pursuant to the settlement approved on January 24, 2013, Medicare will pay for the services at issue if they are needed to “maintain the current condition or prevent or slow further deterioration,” and the patient would not be required to show that his or her condition is likely to improve.  The settlement agreement, which indicated that any actions taken by CMS were not an expansion of coverage, but rather, a clarification of existing policy, requires CMS to complete manual revisions and an educational campaign by January 23, 2014.

Last week, CMS published the required revisions to the Medicare Benefit Policy Manual, and the revisions go into effect January 7, 2014.  While the revised manual language clarifies, as required by the settlement agreement, that no “Improvement Standard” may be applied in determining Medicare coverage for skilled care, CMS also included revisions regarding appropriate documentation to facilitate accurate coverage determinations for skilled care.  CMS acknowledged that while appropriate documentation by itself is not an element of the definition of a “skilled” service and was not referenced in the settlement agreement, it would take the opportunity to introduce additional guidance, stating that documentation helps providers establish and Medicare contractors confirm that skilled care is appropriate for a particular beneficiary.

A fact sheet on the Jimmo case may be read here, and an article summarizing the manual revisions may be found here.  On December 19th, CMS is also hosting a call as part of the educational campaign related to the settlement agreement.  Details on registering for the call may be found here

Reporter, Christina A. Gonzalez, Houston, +1 713 276 7340, cagonzalez@kslaw.com.