Jimmo v. Sebelius

On Behalf of | Sep 12, 2018 | Elder Law, Long Term Care Planning, Medicare and Medicaid |


Many of our clients begin post-hospitalization therapies in nursing homes or rehabilitation centers thankful that Medicare will pay for their expensive care (which often costs more than $500/day).  Weeks, sometimes days afterwards, however, they learn that Medicare won’t continue to cover either the nursing home OR the therapies if their condition isn’t improving.

Persons covered by Medicare, most Americans over 65 years old, qualify for such coverage IF they have been hospitalized for at least three days and, within 30 days of their discharge from the hospital, they enter a nursing home or rehabilitation facility with doctor’s orders for either skilled nursing care or rehabilitation therapies to counter the condition which landed them in the hospital in the first place.

Medicare covers the entire cost of the care for the first 20 days.  For the next 80 days it will pay most of the cost; most supplemental health insurance policies cover the “patient paid” amount, but HMOs usually refuse to pay if the patient is not being served by a “preferred provider.”.  No matter how extensive the medical need is for treatment, however, Medicare assumes no financial responsibility beyond the 100th day.  For long rehabilitation stays, therefore, the patient either must pay for further care herself or qualify for Medicaid to continue such coverage.

That remains the law, but it has been interpreted (and even continues to be construed) as only applying if the skilled nursing care or therapies lead to an improvement in the patient’s condition.  Thus, facilities and, indeed, many doctors, have understood the rule to be that if a patient’s condition “plateaus,” i.e. is not improving, Medicare’s support ends. Even today, the term “plateau” is part of “common knowledge,”  an example of the fact that sometimes “common knowledge” is dead wrong.

The Center for Medicare Advocacy, headed by former NAELA President, Judy Stein, in 2011, filed a class action in the federal district court of Vermont, Jimmo v. Sebelius” on January 18, 2011 contending that the “plateau” standard discriminated against many patients, including those suffering from chronic diseases, for whom therapies, while they might not reverse their condition, could alleviate it.  Plaintiffs reached a Settlement Agreement with the Centers of Medicare and Medicaid, whose abbreviated title is CMS, (for that reason the then head of the Department of Health and Welfare had been named nominal defendant) on October 16, 2012 which the judge approved on January 24, 2013.  While the Settlement eliminated the “plateau” standard, and was retroactive, CMS needed time to amend its regulations; some facilities and others were not made aware of this fundamental change or didn’t understand that the change was retroactive while the CMS went about promulgating new regulations.  That might account for why, even three and a half years after the Settlement was judicially approved, most persons you encounter at nursing homes and rehabilitation facilities still aren’t aware of the change.

To combat this inertia we encourage clients to make a copy of this or others’ statement about the law and present it, especially at “family meetings” designed either to discharge patients or announce that Medicare will no longer pay for the therapies or the cost of a nursing home bed because the patient has “plateaued.”  It’s been gratifying to learn from many clients that, without resorting to legal action, they were able to persuade facilities to continue accepting Medicare payments for such services on the basis of a general memorandum we wrote..

Medicare was never considered a long-term source for funding nursing home expenses.  But it is vital that our clients maximize their access to good therapies during those 100 days.  Not paying $500/day is certainly one incentive.  But a much greater one is to achieve as much physical independence as possible, obtaining good physical and occupational therapies.  (“Occupational” therapies, incidentally, are not what I thought they were when I first encountered the term; I thought they had something to do with getting back to work!  Rather, they retrain people on ways to adapt to new physical constraints by re-learning skills we take for granted when we are able-bodied.)  Advocate for your active rehabilitation just as the Center for Medicare Advocacy did when it instigated this far-reaching victory.