Little-known Medicare lawsuit can help clear path to recovery

Medicare patients can’t lose treatment even if they ‘show no improvement,’ says oft-ignored Jimmo v. Sebelius

By Gabe Quintanilla for the Houston Chronicle

Several days after Christmas last year, my 91-year-old mother suffered a stroke. Up until that time, I had paid very little attention to the topic of Medicare. But in the days that she spent at a San Antonio hospital several months ago, I began mapping out a plan for my mother’s treatment. What I’ve learned along the way about how health care providers manage Medicare-covered patients – and how they regularly violate a federal court order that provides very clear instruction in this regard – has angered me and should trouble us all.

My mother suffered a left-brain stroke, which impaired her ability to speak and swallow. Her neurologist was guarded with his assessment. Any progress that she would make would be “baby steps.” The hope was that she would make enough “baby steps” to regain her ability to eat and speak again. Although he did hold out some hope for my family, he was emphatic: Any recovery would take time – we needed to be patient. We would have a roller coaster of emotions.

Because she could not swallow, the neurologist advised that she have a “PEG” tube inserted so that she could gain necessary nutrition directly through her stomach. The goal was that this would hopefully be temporary while she underwent therapy.

Oddly enough, a few days later, a different doctor entered my mother’s room. He worked for the health insurance company that provides my mother’s Medicare Advantage Plan coverage – essentially, the private company is the administrator of her Medicare benefits. He was very pessimistic. He advised against inserting a PEG tube. He said that Mom was not showing any progress in the brief therapy sessions there in the hospital. His advice was to make her comfortable in the care of a hospice agency.

This was my first exposure to a dirty little secret and a topic that receives scant news coverage: Despite a federal ruling specifically directing the health care industry against doing so, it’s still employing the “Improvement Standard” for patients whose treatment is paid for by Medicare.

The Improvement Standard is pretty much what it sounds like: No progress? No Medicare coverage. In the world of Medicare-funded care, the dreaded term is: “plateau.” No matter that the progress or plateau is assessed in a cruelly subjective manner, clearly intended to avoid the expensive treatment or therapy that patients who suffer catastrophic health events or chronic illnesses commonly require. Stroke patients and their advocates all across the state of Texas encounter this.

The question is: Why?

The Improvement Standard was the subject of a landmark federal class-action lawsuit a couple of years ago, Jimmo v. Sebelius. The January 2013 settlement agreement in the case is now the law of the land: Medicare benefits may no longer be withheld from patients simply because the patient has stopped making “progress.” Medicare now recognizes that skilled services can be required to maintain an individual’s condition or functioning, or to slow or prevent deterioration, including therapy to maintain the individual’s condition or function.

Overnight, the Jimmo case required that Medicare manuals be rewritten to delete any reference to the Improvement Standard. The federal judge also required the government to engage in educational outreach to inform health care providers and insurance companies that the Improvement Standard is now illegal.

Unfortunately, there is little awareness of the lawsuit and the implications of the Jimmo agreement. Over the past several months, I have been sending copies of this lawsuit to my mother’s doctors, to her Medicare Advantage Plan insurance carrier and to her home health care provider. As friends and acquaintances have learned of my struggle, their own post-Jimmo Medicare Improvement Standard horror stories have emerged. After several months of battling the insurance carrier, I have managed to keep my mother’s therapy ongoing ever since she came home in April.

What is disturbing to me is that such an important development as the Jimmo case is being ignored by so many insurance companies providing Medicare Advantage. It is being ignored by skilled health care facilities (nursing homes and rehabilitation centers), therapists and home health care companies. Every time I hear one of these entities claim that they are ending therapy for my mother because she has “plateaued,” I tell them how this standard is now illegal. They are astonished when I show them a copy of the case decision.

On July 4, while mom lay in her bed at home, she spoke for the very first time without prompting. Since that day, she has been saying very short sentences.

Baby steps. The words of her neurologist keep ringing in my ear.

If I had not come across the Jimmo case, my mother’s therapy would have stopped months ago. She would have faced the same “Notice of Non-Coverage” forms that untold thousands of patients have received for decades.

Family members who have suffered devastating illnesses and who receive Medicare benefits need advocates, as my mother did. If that’s you, arm yourself with a copy of the ruling, easily found with a Google search, print out a copy and be prepared to fight. You can appeal if your loved one is being denied crucial therapy. And while the therapy continues – keep praying.

You’re in a footrace with time. Jimmo gives it to you.

Quintanilla is a lawyer in San Antonio.