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Advocacy News: Jimmo v. Sebelius Update

a7d9e751510f96144aec1806bd8f74aeThis battle is not for the faint of heart. The battle I speak of does not roar but whimpers on in homes and skilled nursing facilities across our nation. It is the battle for getting extended therapy for those rehabilitating from acute injury and those suffering from chronic degenerative diseases.

The former need therapy to get back to normal function and the latter need ongoing therapy to simply maintain what they have and prevent further deterioration. In both cases, getting as much therapy as possible is critical to quality of life.

It seemed like a great victory was won for everyone needing extended therapy on January 2013 when a class action law suit brought against the Center for Medicare and Medicaid Services (CMS) was won on behalf of the 50 million Medicare beneficiaries in this country (Jimmo v. Sebelius).

The law suit was filed in 2011 by the Center for Medicare Advocacy and Vermont Legal Aid on behalf of four Medicare patients and five national organizations, including; the Parkinson’s Action Network (PAN), the Alzheimer’s Association, the National Multiple Sclerosis Society and United Cerebral Palsy. It was filed over a standard for Medicare coverage, referred to as the “improvement standard.” This standard required Medicare beneficiaries to show improvement to continue physical, occupational and speech therapy services. PAN advocates felt that the use of this standard discriminated against people with Parkinson’s and other chronic degenerative diseases.

The problem was that this standard was never the spirit or letter of the original law but was written into the CMS manuals in skilled nursing facilities and used by judges hearing appeals below the Administrative Law Judge level. The Medicare manual revisions were required as part of the Jimmo v. Sebelius settlement to reflect the true content of the law.

There were hopeful voices raised and happy proclamations made by vigorous advocacy organizations like PAN saying things like, “Effective January 7, 2014, Medicare beneficiaries can no longer be denied coverage for physical, occupational, and speech-language therapy and other skilled services solely for lack of improvement.”

My own optimism was woven into a NYT article published this year in their “New Old Age” blog by writer Susan Jaffe heralding the fact that Medicare recipients would now be able to receive extended therapy benefits which could completely change the trajectory of their lives. Well, it’s been a year and a half since the decision and a line from a Leonard Cohen song comes to mind, “It’s a cold and it’s a broken hallelujah.”

Despite high hopes nothing much seems to have changed from my perspective out here in the real world. At least to this nurse and patient advocate, life post “Jimmo” is not appreciably different from life pre “Jimmo.”  I am currently making my second round of calls to the legal team at Centers for Medicare Advocacy to give them the feedback they have requested on how Medicare recipients are doing getting the therapy they need when they fit this more liberal criteria for ongoing therapy. I will tell them the following story.

I have one patient in particular that is a poster child for this cause. She is an 85-year-old blind Catholic nun in a nursing home with a passion for life. Due to her disability and several setbacks, she needs assistance to get up and walk. Without it she will quickly fade away. This means she needs daily therapy on an ongoing basis or she, like so many prematurely immobile patients in nursing homes, will develop the complications associated with sitting in a wheel chair or lying too long in bed. Those complications are deadly.

Medicare has so far denied her ongoing therapy even though it is clear that it is the only thing that will maintain her health and quality of life. She is the perfect “Jimmo” case.

Even with a professional geriatric nurse care manager and experienced elder law attorneys behind her appealing to CMS and CMA we are having a hard time getting her the therapy she needs. There’s been an appeal to the Administrative Law Judge and we are still waiting for a decision.

It’s a long wait.

If you have any personal stories to share with the Center for Medicare Advocacy on progress since Jimmo v. Sebelius, please email them directly at [email protected] or visit their website at www.medicareadvocacy.org. The more real feedback CMA receives, the more accurate and compelling our voices will be.

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