On January 24th, 2024, we marked the 11-year milestone of the landmark settlement in the Jimmo v. Sebelius Lawsuit. This pivotal event had profound implications for using skilled maintenance therapy to help maintain, prevent or slow functional declines in patients across skilled nursing, home health and outpatient settings.  

Since nursing facilities are required to have practices in place that identify and prevent avoidable declines in function for each individual resident, on paper, this delivery model should serve as a major component to support traditional rehabilitative therapy and restorative nursing in meeting these needs.

However, despite extensive analysis of the Medicare policy revisions and multiple advocacy groups promoting its use, we still lack clarity in what, when and how to appropriately use skilled maintenance therapy.   

In current practice, decisions on its use are often dictated by company policy and fear of denials rather than by patient presentation or clinical assessment.  This is largely due to Medicare and Medicare Advantage plans not following the settlement details of the Jimmo lawsuit, resulting in returns to the courtroom in 2016, 2021 and 2024 with subsequent guidelines, clarifications and technical letters filtering out.

So, let’s review what happened and how we got here. 

In 2011, a lawsuit was filed on behalf of several patients, including Glenda Jimmo and multiple advocacy groups, against the Department of Health and Human Services, which was run by Kathleen Sebelius at the time.  They argued that Medicare coverage was being denied due to lack of progress, despite this contradicting language in their own benefit policy manual.

In 2013, the case was settled, and Medicare was required to clarify the wording in its manuals and educate its contractors and the public that coverage exists for those who require the skills of a therapist to develop, implement and/or perform therapy to maintain functional status.

Despite these changes, the utilization of skilled maintenance therapy to maintain functional status or the deliverance of maintenance therapy in practice has continued to be minimal. Patients are still being denied services by providers and insurance companies based on their lack of progress. This underscores the ongoing need for further education and advocacy in this area.

When speaking to other clinicians, many have found themselves with ongoing questions, gaps in knowledge or perpetuating myths about using skilled maintenance.  As of a 2018 survey of providers, 40% had not heard of the Jimmo Settlement, and >85% of respondents said they did not participate.

As the resources surrounding this topic of best practices continue to grow, it is imperative that facilities and clinicians continue to take steps to implement these services when appropriate.  We must continue to educate and advocate on behalf of our residents to maximize their quality of life.

Definitions

Restorative Therapy

  • Needed to address and improve deficits
  • Goals are set, and improvement is expected
  • Discharge upon reaching goals or maximum potential
  • Requires the skills of a therapist

Skilled Maintenance Therapy

  • Needed to sustain current function and prevent/slow loss of function
  • No improvement is expected
  • Requires the skills of a therapist

General Takeaways

  • Skilled Maintenance:
    • Applies specifically to federal payors, and it is important to look at private insurance policies and all local coverage determinations.
    • Applies to both Medicare Part A and B within SNFs, OP therapy, and home health.
    • Is a covered option when the skills of a therapist are needed to design a program and pass it to non-skilled persons to carry out or to design a program that requires a therapist to carry out.
  • The unavailability of a competent person to provide a non-skilled service, regardless of the importance of the service to the patient, does not make
     it a skilled service when a therapist furnishes the service.
  • Frequency and plan of care length guidelines do not exist specific to skilled maintenance.
    • Consider terminology used in Medicare Benefit Policy Manual in combination with resources available from APTA and leading clinicians.
    • Consider terminology used in Medicare Benefit Policy Manual in combination with resources available from APTA and leading clinicians.
    • Consider terminology used in Medicare Benefit Policy Manual in combination with resources available from APTA and leading clinicians.
  • Consult resources such as decision trees, example letters, and documentation examples.

Kevin Cezat, PT, DPT, GCS, RAC-CT, is the Director of Clinical Excellence for Therapy Management Corporation, a CEU presenter, and a board-certified specialist in geriatric physical therapy.  He works in long-term care facilities in central Florida and oversees clinical quality in facilities spread over 20 states.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

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