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Court Approves Settlement in Jimmo v. Sebelius –- Expands Coverage of Skilled Care.

The Jimmo Settlement will Allow Additional Coverage of Skilled Care.(February 10, 2013):  On January 24, 2013, the Federal District Court for Vermont approved the nationwide settlement in Jimmo v. Sebelius.  As we previously reported last October, the Jimmo case involved a class action to require the Medicare program to cover skilled nursing and therapy services if they were needed to “maintain the patient’s current condition or prevent or slow further deterioration,” rather than requiring that the patient’s condition be expected to improve.  See “Settlement in Jimmo Case Would Expand Medicare Coverage of Skilled Care,” Michael H. Cook, October 26, 2012 blog entry. We also reported that the proposed settlement would cover skilled nursing and physical therapy services provided as part of home health services, skilled nursing facility services, outpatient services, and albeit somewhat differently, inpatient rehabilitation facilities.  However, the proposed settlement required Court approval after a fairness hearing before it went into effect.  See earlier article for more detailed discussion.  On January 24, the Court approved the Settlement as proposed!

The settlement also requires the Centers for Medicare and Medicaid Services (“CMS”) to revise its manuals and to conduct an educational campaign to implement the settlement.  Since the settlement has only recently been adopted, CMS has not yet taken these steps.

We have been informed that CMS contractors have still been applying the former policy of requiring that the patient’s condition be expected to improve.  Moreover, a number of industry representatives have expressed concern that contractors such as MACs, ZPICs, and RACs, as well as ALJs and the Appeals Council, may be unaware of the standard for payment articulated in the Jimmo settlement.  And since CMS implementation efforts will likely take some time going through clearance, the manner and timing of implementing the settlement requires providers to both educate CMS contractors and be prepared to use the Jimmo settlement in appropriate cases in the appeals process.  Finally, since the manuals and education process by which the settlement will implemented is still under development, it behooves providers and their trade association to become a part of the discussion process with CMS.

Liles Parker attorneys have substantial experience in both addressing ZPIC, MAC, and RAC audits through the appeals process, in interacting with CMS and contractors, and in advising clients and are available to assist clients in understanding and enforcing how the Jimmo settlement applies to them.  Providers seeking information and assistance in this area should contact Michael Cook.

Healthcare LawyerMichael Cook is a Partner and Co-chair of the firm’s growing health care practice.  He has more than 30 years’ experience representing clients in the health care arena, including post- acute providers in all segments of the industry.  Should you have any questions, please call Michael for a free consultation at 202-298-8750 or at  

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