Settlement To Deliver Victory For Tens Of Thousands Of Older And Disabled Adults Served By Medicare

Burlington, Vt. – The Center for Medicare Advocacy and co-counsel from Vermont Legal Aid today announced that plaintiffs and Secretary of Health and Human Services Kathleen Sebelius filed a Settlement Agreement in the landmark case of Jimmo v. Sebelius, bringing an end to Medicare’s long-practiced but illegal application of an “Improvement Standard.” The settlement of the case [Jimmo v. Sebelius, No. 5:11-cv-00017 (D.Vt.)] will improve access for tens of thousands of Americans, especially older adults and people with disabilities, whose Medicare coverage is denied or terminated because these beneficiaries are considered “not improving” or “stable.” Resolution of this legal challenge effectively ends this harmful practice and ensures fair coverage rules for those who live with chronic conditions and rely on Medicare to cover basic, necessary health care.

“Scuttling the ‘Improvement Standard’ was a thirty-year goal that was worth every minute of our advocacy on behalf of Medicare recipients who need skilled care,” said Judith Stein, an attorney for the plaintiffs and executive director of the Center for Medicare Advocacy. She added, “This Agreement is extremely important to all Medicare beneficiaries with long-term conditions, who have regularly been denied Medicare for medical and therapeutic services that are paramount to maintaining their conditions, or slowing deterioration. The Settlement should end this injustice.”

Michael Benvenuto, director of the Medicare Advocacy Project of Vermont Legal Aid and one of the plaintiffs’ attorneys, is also gratified by the proposed resolution of the case: “Medicare should cover essential care for the treatment and management of chronic conditions. This Settlement offers a real opportunity to finally eliminate the use of the unfair Improvement Standard to deny these claims.”

Lead plaintiff Glenda Jimmo is a 76 year old resident of Bristol, Vermont. Blind since the age of nineteen, she is confined to a wheelchair as a result of her disabling conditions, including a below-the-knee amputation. She requires regular skilled nursing services in her home to provide wound care and help manage her condition. She is proud to have had the opportunity to challenge this illegal Medicare policy, and relieved to know that her care, and the care for thousands of other older people and people with serious disabilities, will be covered by Medicare.

“Filing the Settlement agreement begins a long process to reverse the damage done to tens of thousands of Medicare beneficiaries with chronic conditions,” observed plaintiffs’ lead counsel Gill Deford. The court’s tentative approval of the Settlement will be followed by notification to the class members, who will have an opportunity to comment in writing and at a hearing on the proposed settlement, after which the judge will make her final decision on the Settlement.

Under the proposed Settlement, a nationwide class of beneficiaries will be certified, numerous parts of the Medicare Benefit Policy Manual will be rewritten, and CMS will carry out an educational campaign for providers, Medicare contractors and adjudicators. The revised CMS manual language will clarify that Medicare coverage is available for maintenance services when skilled personnel are required to perform or supervise the care or therapy safely and effectively. In addition, many class members will have an opportunity to have their previously denied claims reviewed under the revised Medicare standards. Plaintiffs’ attorneys will monitor and, if necessary, enforce the provisions of the agreement.

Another member of the class, an 81 year-old Connecticut woman living with Multiple Sclerosis, has battled numerous Medicare denials to continue her necessary home care. As recently as September 2012, she was informed by her home health provider that Medicare would no longer cover her home health aides and physical therapy since the therapy was for “maintenance only” and she was not improving. Just above the Medicaid income-eligibility levels, Mrs. Berkowitz would have to go to a nursing home if her Medicare coverage and home care ends.

While the Centers for Medicare & Medicaid Services (CMS), which is the federal agency responsible for the Medicare program, continues to deny the existence of the rule of thumb known as the “Improvement Standard,” beneficiaries and advocates know that contractors and other adjudicators repeatedly rely on it to deny Medicare claims. Nationwide, thousands of cases of the illegal and unjust practice were identified in 2011 alone.

The lawsuit was brought in United States District Court in Burlington, Vermont by seven individual plaintiffs from Vermont, Connecticut, Rhode Island, Maine and Pennsylvania and seven national organizational plaintiffs: the National Committee to Preserve Social Security and Medicare, the National Multiple Sclerosis Society, Parkinson’s Action Network, Paralyzed Veterans of America, the American Academy of Physical Medicine and Rehabilitation, the United Cerebral Palsy Association and the Alzheimer’s Association. The plaintiffs joined with the named defendant, Secretary of Health and Human Services Kathleen Sebelius, in asking the federal judge to approve the settlement of the case on October 16, 2012.

For more information about the class-action lawsuit, or to learn more about the Improvement Standard or how to get involved in advocacy activities visit

The Center for Medicare Advocacy, Inc., established in 1986, is a national nonprofit, nonpartisan organization that provides education, advocacy and legal assistance to help older people and people with disabilities obtain fair access to Medicare and necessary health care. We focus on the needs of Medicare beneficiaries, people with chronic conditions, and those in need of long-term care. The organization is involved in writing, education, and advocacy activities of importance to Medicare beneficiaries nationwide. The Center is headquartered in Connecticut and Washington, DC, with offices throughout the country.

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