March 21

Plaintiffs Go Back to Court to Enforce Settlement Ending Medicare’s Improvement Standard

The plaintiffs in Jimmo v. Sebelius, the landmark settlement that was supposed to end Medicare’s “improvement standard,” are back in court to try to force the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation under the settlement.

Under the settlement agreement in Jimmo v. Sebeliusthe federal government agreed to end Medicare’s longstanding practice of requiring that beneficiaries with chronic conditions and disabilities show a likelihood of improvement in order to receive coverage of skilled care and therapy services.  Medicare is required to cover skilled care as long as the beneficiary needs it, even if the care would simply maintain the beneficiary’s current condition or slow further deterioration. 

Medicare conducted an educational campaign and updated its benefit policy manual, but three years after the settlement, the Center for Medicare Advocacy is still getting reports that many Medicare providers continue to deny coverage to individuals who are not improving. In response, the Center for Medicare Advocacy and Vermont Legal Aid, co-counsels for the original plaintiffs in the Jimmo case, have filed a motion for resolution of non-compliance with the settlement order in district court in Vermont.

“We are returning to the court to ask for relief that CMS has refused to provide,” said Gill Deford, Director of Litigation for the Center for Medicare Advocacy, and lead counsel for the plaintiffs. “For over two years, we have tried repeatedly to get Medicare to take additional steps to make sure that providers and contractors knew that the days of using an Improvement Standard test have ended but the agency would not do anything. We’ve provided overwhelming evidence that providers and contractors were not educated about the Settlement Agreement and that Medicare beneficiaries were still having their coverage terminated.”

February 25

CMS Makes It Official That Medicaid Home Health Recipients Need Not Be Homebound

On February 2, 2016, the Centers for Medicare and Medicaid Services (CMS) will issue a final rule clarifying that Medicaid beneficiaries do not need to be “homebound” in order to receive home health services.  In addition, the final rule, which revises Medicaid home health regulations (42 C.F.R. § 440.70(c)(1-2)), makes clear that Medicaid home health services are not limited to home settings. 

As Gene Coffey, formerly an attorney with the National Senior Citizens Law Center (now called Justice in Aging), wrote in the January 2010 issue of Caring magazine, “Medicaid’s coverage for home health services plays a critical role in helping individuals stay in their homes and communities while also helping states meet their responsibilities under the [Americans with Disabilities Act].”

According to Justice in Aging, which has been at the forefront of efforts to bring federal and state regulations into compliance with federal law in this area, the final rule “codifies longstanding agency policy, previously articulated in a 2000 letter to state Medicaid directors, that a Medicaid homebound requirement for home health services violates the Americans with Disabilities Act (ADA), as articulated in Olmstead v. L.C., 527 U.S. 581 (1999).”  Despite this, some states have required that recipients be homebound.

Justice in Aging notes that the final rule does not change Medicare’s homebound requirement, although CMS acknowledges the challenges this poses for dual eligible recipients and notes in its rule commentary that “we would permit states the flexibility to authorize additional hours of home health services to account for medical needs that may arise out of the home.” (pg. 56)

The rule will take effect July 1, 2016.  However, to ensure that states and providers are implementing the rule appropriately, CMS is delaying compliance with the rule for up to two years, depending on a state’s legislative cycle.

For more details from Justice in Aging, click here.

January 25

State Properly Rejected Medicaid Application When Requested Verifications Were Not Provided

A New Jersey appeals court rules that the state properly rejected a Medicaid application because the appropriate verifications were not provided, preventing the state from determining whether the applicant’s property and life insurance policy were available resources. A.T. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-3341-13T3, Nov. 23, 2015).

A.T. entered a nursing home and her son, S.T., applied for Medicaid on her behalf. The state requested verification regarding A.T.’s bank account statements, the deed for property she owned, and proof that a life insurance policy had been liquidated. S.T. did not provide the requested verifications, and the state denied Medicaid benefits. After selling A.T.’s property and converting the life insurance policy to an irrevocable trust, S.T. again applied for benefits on A.T.’s behalf, and the state approved the application.

After the nursing home filed a complaint against A.T. and S.T. for non-payment of services, S.T. appealed the original denial of Medicaid benefits. A hearing officer ruled that the original application was properly denied due to lack of verification. S.T. appealed to court, arguing that the state did not distinguish which documents were necessary to make an eligibility determination.

The New Jersey Superior Court, Appellate Division, affirms the original denial of Medicaid benefits. According to the court, the state could not determine whether the property and life insurance policy were available resources until it received the requested verifications.

For the full text of this decision, go here:

November 12

Medicare Open Enrollment Means It’s Time to Shop Around

Are you happy with your Medicare coverage? Could you get a better plan for less money? It is time to review whether your plan or plans are working for you. Medicare’s open enrollment period, in which you can enroll in or switch plans, runs from October 15 to December 7.  A careful analysis could save you hundreds or even thousands of dollars on next year’s coverage.

During this period you may enroll in a Medicare Part D (prescription drug) plan or, if you currently have a plan, you may change plans. In addition, during the seven-week period you can return to traditional Medicare (Parts A and B) from a Medicare Advantage (Part C, managed care) plan, enroll in a Medicare Advantage plan, or change Advantage plans. Beneficiaries can go to or call 1-800-MEDICARE (1-800-633-4227) to make changes in their Medicare prescription drug and health plan coverage.

Even beneficiaries who were satisfied with their plans in 2015 need to review their options for 2016. Prescription drug plans can change their premiums, deductibles, the list of drugs they cover, and their plan rules for covered drugs, exceptions and appeals. Medicare Advantage plans can change their benefit packages and as well as their provider networks. 

While the federal Centers for Medicare and Medicaid Services (CMS) says that the average premium for a basic Medicare Part D prescription drug plan in 2016 will remain stable, at an estimated $32.50 per month, Avalere Health, a consulting and research firm, reports that premiums for the 10 most popular drug plans will rise an average of 8 percent next year, and five of these plans will see double-digit hikes. According to CMS, the average Medicare Advantage premium is expected to decrease from $32.91 on average in 2015 to $32.60 in 2016.

Remember that fraud perpetrators will inevitably use the Open Enrollment Period to try to gain access to individuals’ personal financial information.  Medicare beneficiaries should never give their personal information out to anyone making unsolicited phone calls selling Medicare-related products or services or showing up on their doorstep uninvited.  If you think you’ve been a victim of fraud or identity theft, contact Medicare. 

Here are more resources for navigating the Open Enrollment Period:

August 27

Centers for Medicare and Medicaid Services Proposes New Regulation to Govern Nursing Home Arbitration Agreements

On July 16, 2015, Centers for Medicare and Medicaid Services (CMS) published in the Federal Register an exhaustive proposed rule on requirements for long-term care facilities. One of the proposed provisions concerns dispute resolution — specifically, binding arbitration agreements — at Sec. 483.70(n). The posted background on this topic provides, “We considered not proposing any requirements concerning binding arbitration agreements. We share stakeholders’ concern that some nursing homes may be requiring residents to sign agreements for binding arbitration as a requirement for admission into the facility. In addition, if the nursing home is not requiring the agreement as a condition of admission, some facilities may be requesting the resident to sign the agreement without fully explaining the rights the resident is waiving and the consequences of that waiver. We have proposed specific requirements if a nursing home chooses to request that a resident sign an agreement for binding arbitration. These requirements include, among other things, that the nursing home must explain the agreement to the resident in a form and manner that he or she understands, and that the resident acknowledge that they understand the agreement. We have also proposed specific requirements for the agreement, including that admission to the facility cannot be contingent upon the resident signing the agreement, the agreement must be entered into voluntarily, and the arbitration must be conducted by a neutral arbitrator in a venue convenient to both parties.

For the full text of the proposed regulations from the Federal Register, click here.