“Improvement Standard” Denials

September 29, 2016

In an Opinion and Order entered August 18, 2016, a judge ordered the Federal government, through the Centers for Medicare and Medicaid Services (CMS), to comply with a settlement agreement they had reached in the case of Jimmo vs. Sibelius in 2013. CMS had agreed to both update their policy manuals and to provide education that there was no “improvement standard” when determining the medical necessity of maintenance claims for people that require skilled care. Although the manuals have been updated, the Education Campaign has been less than robust, according to the Center for Medicare Advocacy, and many people are still having coverage denied for skilled services because they are not expected to make further progress. As CMS stated in the transmittal issued when it updated the manuals:

“No “Improvement Standard” is to be applied in determining Medicare coverage for maintenance claims that require skilled care. Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes (i.e., to prevent or slow a decline in condition). The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves. The manual revisions now being issued will serve to reflect and articulate this basic principle more clearly.”—available here.

CMS has again committed themselves to ensuring that this information gets out to a wider audience. In the meantime, it is good information for AAPM&R members to be aware of, in case you receive a denial based on the invalidated “Improvement Standard.”