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Jimmo v. Sebelius: CMS Revises Guidance

January 21, 2014

Recent changes to the Medicare Benefits Policy Manual ("MBPM") resulting from the settlement in Jimmo v. Sebelius clarify coverage standards to definitively reject the "improvement standard." In the revised guidance, which took effect on January 7, 2014, CMS states the applicable standard as follows: "Coverage of nursing care and/or therapy to perform a maintenance program does not turn on the presence or absence of an individual’s potential for improvement from the nursing care and/or therapy, but rather on the beneficiary’s need for skilled care." MBPM, Ch. 8, §30. CMS explicitly acknowledges that "skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition." MBPM, Ch. 8 § 30.2.1. CMS included more detailed guidance on the type of documentation necessary to support the need for therapy and also identified several vague phrases certain to result in a denial of coverage such as: "patient tolerated treatment well," "continue with POC," and "patient remains stable."

The changes to the MBPM can be accessed by clicking here. In addition, CMS issued a Medicare Learning Network newsletter on the changes, which can be accessed by clicking here.

If you have any questions about the information contained in this Alert, please contact Dena M. Castricone at 203.772.7767/dcastricone@murthalaw.com, Heather Berchem at 617.457.4191/hberchem@murthalaw.com, or a member of our Long-Term Care Group.

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