Medicare “Improvement Standard” Lawsuit will Proceed

Medicare does not cover custodial care. Routinely, home health agencies and nursing homes that contract with Medicare will terminate a beneficiary’s Medicare coverage if the beneficiary has stopped improving, claiming that the patient needs only custodial care.

On behalf of five Medicare enrollees and multiple organizations, the Center for Medicare Advocacy and Vermont Legal Aid filed a lawsuit asserting that Medicare uses the “Improvement Standard” to illegally deny coverage to patients who have stopped improving. The complaint asserts that neither Medicare’s regulations nor statutes require improvement for continued skilled care.

The government moved to dismiss the case, contending that the court lacked jurisdiction over the plaintiffs’ claims and claiming that the plaintiffs had failed to state a claim for which relief could be granted. 

In Jimmo v. Sebelius (D. Vt., Civil No. 5:11-CV-17, Oct. 25, 2011), the U.S. District Court of Vermont rejected the government’s claim that no proof exists that the government uses the Improvement Standard. The court agreed that it lacked jurisdiction over one Medicare enrollee plaintiff and one organization plaintiff. The case will proceed with the remaining plaintiffs.  

See Federal Judge Rules Medicare ‘Improvement Standard’ Lawsuit May Proceed, Elder Law Answers, Oct. 31, 2011. 

 For a copy of the complaint, click here.