Lawsuit Charges Medicare With Neglect to Rehabilitation

By Richard Scott
January 20, 2011

A Medicare advocacy organization filed a lawsuit against the federal government this week contesting the so-called “improvement standard” that covers – and often does not cover – rehabilitative care for patients facing chronic or catastrophic conditions. The lawsuit holds the potential to affect many thousands of seniors.

At stakes is a provision within the current Medicare law that requires a beneficiary to evince “demonstrable” improvements from certain types of rehabilitative care – including skilled nursing and physical and occupational therapy – to be able to qualify for such care.

“Our goal is to eliminate the policy and practice that we call the ‘improvement standard,’ which leads to denials of Medicare coverage for thousands of Americans who need that care in orders to maintain their conditions or keep (them) from getting worse,” said Judith Stein, executive director of the Center for Medicare Advocacy, a nonprofit that describes itself as a provider of “education, advocacy and legal assistance to help elders and people with disabilities obtain Medicare and necessary health care.”

In conjunction with four other groups, the Center for Medicare Advocacy filed the class action lawsuit – known as Jimmo v. Sebelius – in United States District Court in Vermont. The organizations include the National Committee to Preserve Social Security and Medicare; the National Multiple Sclerosis Society; Parkinson’s Action Network; Paralyzed Veterans of America; and the American Academy of Physical Medicine and Rehabilitation.

Stein, who calls the standard “illegal, unfair and an inappropriate application of the Medicare law,” argues that those faced with chronic conditions require ongoing treatment to prevent their condition from worsening and to achieve and maintain independence. Further, the disregard for treatment can translate to higher costs down the road should the condition deteriorate.

Providing background to the lawsuit, the Center for Medicare Advocacy has launched an advocacy and education initiative containing an overview of the standard, the reason for its stance, and anecdotes of individuals’ experiences within the current system.

“Beneficiaries are told Medicare coverage is not available if their underlying condition will not improve, if they have ‘plateaued,’ are not likely to improve, or if they need ‘maintenance care only,’” according to the organization.

Recent precedent suggests that the lawsuit has a good chance to win in the plaintiff’s favor. Late last year two federal courts ruled in favor of individuals, deciding that they did not have to meet the improvement standard to receive continued care in the settings of skilled nursing and home health. However, those courts, ruling in Pennsylvania and Vermont, decided on individual cases. The new lawsuit proposes nationwide coverage.