When 76-year-old Glenda Jimmo of Lincoln was denied Medicare coverage for home nursing services, the blind and diabetic mother of four said she felt it was an injustice.
With only one leg and one toe remaining, Jimmo became the lead plaintiff in a class action suit against the federal Department of Health and Human Services. Last week, both parties agreed to a proposed settlement, which could open the doors for thousands of the nation’s elderly to receive nursing services based on need rather than the potential for health improvement.
Under statute, Vermont established a Medicare advocacy program in the late 1980’s to ensure that individuals eligible for Medicare and Medicaid benefits received the coverage they are entitled to. The state contracts out to Vermont Legal Aid’s Medicare Advocacy Project to run this program.
Over the past five years, director of the project Michael Benvenuto said he has seen hundreds of cases where Medicare beneficiaries were denied coverage for conditions that were chronic, stable or didn’t present improvement. And Benvenuto, who was one of 11 attorneys representing Jimmo in the class action suit, said Vermont Legal Aid has traced the practice back decades.
The plaintiffs’ attorneys call this alleged policy, which isn’t written down, the “improvement standard.”
“We’ve known this has been a significant problem in the Medicare system for a long time,” said Benvenuto.
‘You have to stand up for what’s right’
Glenda Jimmo lives with her husband Dennis in a tiny lime-green trailer in the Lincoln foothills between Mount Helen and Mount Abe. A makeshift wood walkway leads to the front door, which opens into the main living room, where the Jimmos spend most of their days.
This past Thursday and Friday, through wisps of cigarette smoke spiraling in the dimly lit cabin from visitors, Jimmo recounted her long history of health complications.
At the age of 19, she was pronounced legally blind, and in the early 1980s she was diagnosed with diabetes, which she blames on a junk food-driven diet that lasted for decades. She found herself completely blind in 1991, and she lost her right leg in 1999 due to circulation issues associated with diabetes. In recent years, she had four of her remaining five toes amputated.
“It makes it easy to cut your toe nails when you only have one toe,” she chided, as a group of flies buzzed around her cotton housedress.
When asked what would have happened to the Jimmos if Medicare didn’t provide coverage for nursing services, Dennis was unequivocal.
“We wouldn’t be able to afford them,” he said as he clenched his wife’s hand. Jimmo’s nurse now comes on a weekly basis, and the Jimmos say he is covered under Medicare.
Throughout this process, Glenda Jimmo said that she always thought she would receive the care she needs.
“Nobody ever promised people that worked all their life that they’d get what they wanted, whether it’s a new car or a new tractor,” she said. “But if you need something to help you walk or to help you get around, you will get the necessities if you go after it. You just can’t sit there and hope it will come walking through the door. You have to stand up for what’s right.”
The case and the settlement
Attorneys from the Connecticut-based Center for Medicare Advocacy took the lead on the class action suit filed in the Rutland U.S. District Court.
At front and center was the improvement standard.
In a statement released by the center’s director Judith Stein, she said, “Scuttling the ‘improvement standard’ was a 30-year goal that was worth every minute of our advocacy on behalf of Medicare recipients who need skilled care.”
But the federal government denies that the standard has ever been applied, and it’s nowhere to be found in its policies. The Centers for Medicare and Medicaid Services (CMS) did not speak about the case after numerous requests for comment, and the feds’ motion to dismiss the case was not viewable in the federal court database, known as PACER, or the Public Access to Court Electronic Records.
To reach a proposed settlement, the feds required language that would relinquish them of any alleged wrongdoing.
As the language reads: “Neither this Settlement Agreement nor any order approving this Settlement Agreement is or shall be construed as an admission by Defendant of the truth of any of the allegations set forth in the First Amended Complaint or the validity of the claims asserted in the First Amended Complaint, or of Defendant’s liability for any of those claims.”
Benvenuto said that this language was a concession of the agreement and did not reflect the Medicare advocacy attorneys’ true opinions.
“Part of the settlement agreement is that they are not actually agreeing that they are doing anything wrong or denying claims based on the improvement standard,” he said. “But that’s clearly not at all our experience. We see this routinely and on a widespread basis across the Medicare system.”
The federal government does not actually review Medicare claims, explained Benvenuto. It contracts that responsibility out to private companies.
“It’s these private contractors in adjudicating claims that will deny them based on the belief that the person is stable, chronic or not expected to improve,” he said.
That’s what happened to Jimmo, added Benvenuto. A private company representing CMS allegedly told Jimmo’s home nursing provider that she wasn’t covered under Medicare for those services because her condition was stable. VTDigger spoke to her nurse, but he said he could not comment on the case.
During the time Jimmo was allegedly deemed stable and denied care for home nursing services, said Benevenuto, she had four of her toes amputated.
Although CMS does not acknowledge or take responsibility for the improvement standard in the settlement, Jimmo and the Plaintiffs’ attorneys consider the agreement a victory because it would set the record straight that such a policy is illegal. The proposed settlement also requires CMS to launch an education campaign to clear up this matter.
The settlement would require CMS to clarify that home and nursing home therapy as well as nursing services for Medicare beneficiaries are not dependent “on the presence or absence of a beneficiary’s potential for improvement from the therapy (and nursing care), but rather on the beneficiary’s need for skilled care.” This language also pertains to outpatient therapy services.
The settlement refers to this clarified policy as the “maintenance coverage standard,” and Jimmo’s legal team said it would improve access to Medicare coverage for tens of thousands of Americans.
Over the next three to four years, the attorneys will meet with CMS representatives twice a year and monitor how well CMS is following the agreement.
“We’re agreeing to three to four years of court enforcement to make sure that takes place, but we remain cautious that they’re really going to do that,” said Benvenuto.
He said that the legal team expects Judge Christina Reiss to rule on the matter by January of next year.