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Just today I received a call from a family member who is being told by a rehabilitation facility that his loved one will be discharged from Medicare because “she is no longer improving.” I let the man know that “not improving” is not an appropriate reason to deny Medicare services and if he receives a Notice of Noncoverage, that it should be appealed.

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Three years ago a settlement was reached between the Center for Medicare Advocacy and Vermont Legal Aid with Centers for Medicare & Medicaid Services (CMS) in the landmark case Jimmo v. Sebelius that left no doubt that under the law and related regulations and policies, it is not necessary to improve in order to obtain Medicare coverage for skilled services.

On March 1, 2016 the Center for Medicare Advocacy and Vermont Legal Aid filed a Motion for Resolution of Non-Compliance with the Settlement Agreement in the Jimmo v. Sebelius case. When the case was settled three years ago CMS had agreed to educate Medicare providers, contractors and adjudicators that the Improvement Standard is not applicable.

Medicare is available to maintain an individual’s condition or slow deterioration. Medicare coverage for skilled care should not be terminated because a patient is “not improving” or plateaued.

According to Gill Deford, Director of Litigation for the Center for Medicare Advocacy, “We are returning to the Court to ask for relief that CMS has refused to provide. For over two years, we have tried repeatedly to get Medicare to take additional steps to make sure that providers and contractors knew that the days of using an Improvement Standard test have ended but the agency would not do anything. We’ve provided overwhelming evidence that providers and contractors were not educated about the Settlement Agreement and that Medicare beneficiaries were still having their coverage terminated.”

The Center for Medicare Advocacy has been tireless advocates to ensure that the law is properly applied. In the meantime, patients should appeal improvement denials.