Recently good came news for Medicare beneficiaries with chronic health conditions – like chronic diabetes, dementia and multiple sclerosis, to name a few – who require the skilled services that are covered by Medicare through skilled nursing homes, home health setting, or skilled outpatient therapy: No longer can they be denied or discontinued from Medicare coverage only because their condition is not improving or will never improve.
This is a result of the settlement to the federal case Jimmo v. Sibellius, a class action lawsuit in federal court.
The lead plaintiff – a lady whose leg was amputated because of complications from her diabetes – was denied coverage by a private Medicare contractor for skilled nurses and home health aides because her condition was “unlikely to improve.”
In Jimmino, the plaintiffs reached a settlement with Medicare, on Jan. 23, that the correct standard is whether the Medicare beneficiary needs skilled care and whether the skilled care is itself reasonable and necessary to treating the condition.
Importantly, the settlement does not create new Medicare regulations but reinterprets existing Medicare regulations correctly.
Previously, the skilled nursing homes and skilled home care providers have routinely required that a Medicare recipient must be able to improve and in fact make improvement. The “making improvement” standard was challenged in Jimmino.
The “improvement standard” has been widespread at skilled nursing homes where many people were told that they can no longer receive Medicare coverage for the first 100 days at a skilled nursing home, after being transferred from an inpatient hospital stay of at least three days, because they were not showing signs of improvement at the nursing home or could not improve.
Accordingly, any Medicare beneficiary who requires skilled services to maintain his or her health condition or to prevent or slow its deterioration, regardless of the underlying illness, disability or injury, may get Medicare coverage for such skilled services provided they are reasonable and necessary.
This applies to Medicare Home Health, outpatient therapy and skilled nursing facility benefits, and applies to both traditional Medicare and Medicare Advantage.
There are limitations to the application of the Jimmino rule. First, it only applies to skilled services and not unskilled services.
Second, if the Medicare recipient is seeking skilled care for rehabilitation reasons only – i.e., only to restore lost function – then Medicare coverage would only apply if there is a favorable prognosis for recovery and the beneficiary improves through treatment.
Thus, Medicare coverage still does not apply when the Medicare beneficiary has no chance of rehabilitation or is not showing progress from rehabilitation.
Lastly, as the Jimmino settlement was agreed on Jan. 23 there are likely still some skilled nursing homes and skilled medical providers who do not know the correct Jimmino standard. For this reason it is important to be aware of the standard and to assert it when necessary.
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 870 S. Main St., Lakeport, California. Fordham can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .