Sunday, November 4, 2012

Medicare coverage litigation--Jimmo v. Sebelius

I'm a few days late covering this vitally important settlement of litigation between patient groups and Medicare, but I thought I'd give a small taste of what it's really about.

My mother-in-law passed away in January of ALS (Lou Gherig's disease). That disease, among other things, gradually eliminates your ability to control your limbs, while leaving you with full sensation. In other words (to take an easily understood example), you can be lying in your bed, wishing you could roll over because your arm is in an uncomfortable position, but not be able to roll yourself over. All night.

Physical therapy, you can easily imagine, was a great relief to my mother-in-law. It's a huge benefit to have your body moved around by someone else, in the ways you'd like to move it yourself, if you could: stretching, twisting, opening up. Even just 20 minutes of externally-supplied mobility each day goes a long way toward making up for the immobility the ALS patient faces the other 23 hours and 40 minutes of each day.

But the Massachusetts entity that holds the contract to administer Medicare (along with very many other state contract-holders) decided that Medicare should not pay for my mother-in-law's physical therapy, because it did not stand any chance of curing her.

At some level, of course, one can understand a cost-controlling rule that says, "We're not paying for things that don't work." It was such a rule that Massachusetts's and other states's intermediaries were attempting to follow. But it's simply false to think that anything that doesn't cure you doesn't "work." Think of physical therapy, or nursing attention, for example: many who are chronically or terminally ill can benefit from those kinds of interventions, even if they hold out no prospect for cure.

And that's what the government agreed to in its settlement of Jimmo v. Sebelius. Manuals that guide the decision-making of contractors who administer Medicare at the state level will no longer permit denials of payment to therapies simply on grounds that they don't cure. They'll now explicitly permit payments for treatments that help maintain the patient's current condition or that prevent further deterioration. Mind you, the holding isn't as generous as a rule that might permit payment for every treatment that keeps a patient comfortable, or that reduces a patient's suffering; but it's a big improvement over the "we only pay for cures" position that a number of Medicare intermediaries had been taking.

My mother-in-law offered testimony in this case. Luckily, during the pendency of the case, my father-in-law had sufficient private funds to pay for the therapy she needed to keep herself comfortable during the months of her ALS decline. But she always knew that the Massachusetts Medicare intermediary's position just wasn't right; that it couldn't be the case that national health insurance wouldn't pay for care that met people's basic human needs, even if it wouldn't cure them.

So now, after this settlement, Medicare will pay for those needs. That will certainly drive up the cost of Medicare. But I don't mind. I don't mind paying the extra taxes necessary to ensure that patients, like my mother-in-law, who are paralyzed with ALS, will be able to get their legs manipulated, or their arms massaged, if that's what will bring them comfort.

Mary would be very pleased that her lawsuit was settled favorably to patients. She and her husband didn't need the money; to them, it was a question of principle. But this settlement brings real relief to thousands of people who have no other means of paying for the care they need.

It's a big deal. I offer now a toast, to our now-departed litigant, Mary: You won. You're gone, and can't enjoy the victory, but that doesn't matter. You weren't fundamentally fighting this battle for yourself. And many thousands will benefit from the lawsuit you supported.