"Not Improving" Is Not a Reason to End Medicare Coverage

It usually gets said out loud, in a room with a round table, by someone holding a clipboard.

He's plateaued.

Then the sentence that follows: therapy will taper off at the end of the month, and Medicare will stop paying, because he is not making progress anymore. Everyone nods. It sounds like a medical fact being reported rather than a coverage decision being made, which is exactly why nobody in the room argues with it.

That sentence has been at odds with Medicare's own regulation since 1983.

The line that was already in the rulebook

Open 42 CFR 409.32, the criteria for skilled services under the Part A extended care benefit. Paragraph (c) reads:

The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities. For example, a terminal cancer patient may need some of the skilled services described in § 409.33.

The citation line at the bottom of the section says 48 FR 12541, March 25, 1983, amended at 59 FR 65493, December 20, 1994. Retrieved 20 August 2026 through the eCFR versioner API against the title 42 issue date of 13 August 2026.

So the improvement standard was never a rule. It was a habit — a shortcut used by facilities, therapy departments, contractors, and sometimes appeals adjudicators, sitting on top of a regulation that said the opposite. That is the gap a nationwide class action walked into.

What Jimmo was, and what it deliberately was not

Jimmo v. Sebelius was filed in the U.S. District Court for the District of Vermont, No. 5:11-cv-17-cr. The settlement agreement CMS posts carries a stamp on every page — Document 82-1, filed 10/16/12 — and the court approved it in January 2013, the date CMS still uses when it refers to the agreement.

Read the definitions section and the framing is careful to the point of being strange. Definition 9 calls the "Improvement Standard" a standard "that Plaintiffs have alleged, but that Defendant denies, exists under which Medicare coverage of skilled services is denied on the basis that a Medicare beneficiary is not improving, without regard to an individualized assessment of the beneficiary's medical condition." A definition written so that agreeing to it concedes nothing. The Secretary's position throughout was that the manual already meant the right thing.

And the agreement contains this, quoted back by CMS in Transmittal 179: Nothing in this Settlement Agreement modifies, contracts, or expands the existing eligibility requirements for receiving Medicare coverage.

Which is the part most summaries get wrong. Jimmo did not buy anybody a new benefit. It forced CMS to rewrite the manual its contractors actually read, and to run an education campaign about it. Nothing more, and the settlement says so on its face.

The follow-through was contested, and the record of that is on the plaintiffs' side of the docket rather than CMS's. Class counsel — the Center for Medicare Advocacy — reported on 23 February 2017 that the court had approved a Corrective Statement a week earlier, on 16 February, for CMS to use to "affirmatively disavow" the improvement standard, as part of a Corrective Action Plan the court had ordered the previous month to remedy noncompliance with the settlement. The same organization reported on 28 August 2017 that CMS had published the required webpage, the last step in that plan. Both dates come from class counsel, not from CMS.

That corrective statement is the block of text now sitting at the top of the CMS Jimmo Settlement page, under the heading "Important Message About the Jimmo Settlement." Four and a half years between a settlement and the webpage announcing it is a fair measure of how hard the habit was to kill.

The manual sentences worth copying into an appeal

Transmittal 179, Change Request 8458, was issued 14 January 2014 with an effective and implementation date of 7 January 2014. It replaced Transmittal 176 to fix an error about therapy assistants in the skilled nursing setting. Its summary states flatly that no improvement standard is to be applied, and that "the Medicare statute and regulations have never supported the imposition of an 'Improvement Standard' rule-of-thumb."

The revised text landed in the Medicare Benefit Policy Manual, Chapter 8, which governs Part A skilled nursing coverage. Three passages carry the weight:

• §30.2.1, Skilled Services Defined. "Skilled care may be necessary to improve a patient's current condition, to maintain the patient's current condition, or to prevent or slow further deterioration of the patient's condition."
• §30.2.2, Principles for Determining Whether a Service is Skilled. "While a patient's particular medical condition is a valid factor in deciding if skilled services are needed, a patient's diagnosis or prognosis should never be the sole factor in deciding that a service is not skilled." The example that follows is blunter, and the second half of it is the half that gets dropped in summaries: "The deciding factor is not the patient's potential for recovery, but whether the services needed require the skills of a therapist or whether they can be provided by nonskilled personnel."
• §30.4.1.1, subsection E, Maintenance Therapy. A maintenance program "to maintain the patient's current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program."

The same transmittal revised Chapter 7 for home health and Chapter 15 for outpatient therapy, so equivalent sentences exist whichever benefit is in play. It also reached Chapter 1, including §110.3, "Definition of Measurable Improvement," for inpatient rehabilitation facilities — a different standard, but revised in the same pass and for the same reason.

The test that replaced it cuts both ways

Here is where families who read only the headline version get blindsided.

Removing improvement as the test does not leave nothing in its place. It leaves a harder question: does this particular service, for this particular person, require someone skilled? CMS spells out the negative side in FAQ A5, and the sentence is worth reading at its own pace: when the individualized assessment "does not demonstrate such a need for skilled care, including when the performance of a maintenance program does not require the skills of a qualified therapist because it could be safely and effectively accomplished by the patient or with the assistance of non-therapists, including unskilled caregivers, such maintenance services are not covered under the SNF, HH, or OPT therapy benefits."

Chapter 8 works this through on an example families meet constantly. Under §30.4.1.1(D), range-of-motion exercises count as skilled therapy only as part of active treatment for a specific disease state that cost the person mobility, documented down to "the degree of motion lost, the degree to be restored and the impact on mobility and/or function." The manual then says outright that passive exercises to maintain range of motion in paralyzed extremities, where aides or nursing staff can carry them out, are not skilled care. What reopens the question is complication, not diagnosis: the same section points back to §30.2.2 for the circumstances in which an ordinarily nonskilled service becomes skilled — contracture risk, a fresh surgical site, a circulatory deficiency. The complication is what pulls a skilled person into the room, and the manual says twice over that the complication has to be in the record.

FAQ A11 answers the other question people ask in the same breath: no, a patient does not have to get worse first. "The Medicare program does not require a patient to decline before covering medically necessary skilled nursing or skilled therapy."

What the paperwork is allowed to say

If coverage of a Part A skilled nursing stay is ending and the facility wants to shift liability to the resident, the notice is the SNFABN, Form CMS-10055, posted on CMS's FFS SNF ABN page (last modified 15 May 2025, read 20 August 2026). The "Because" box on that form usually holds borrowed text. Chapter 30, §70.4.5 of the Medicare Claims Processing Manual keeps a stock of denial paragraphs that a facility "may use … as inserts in the 'Because' and 'Items or Services' sections of the SNFABN," and where none of them fits, the facility has to write its own and route the new wording through its Medicare contractor to CMS for review. That list is not incidental to Jimmo: Transmittal 2911, CR 8644, issued 14 March 2014, revised §70.4.5 for the stated purpose of making the manual instructions "comport with Jimmo vs. Sebelius."

Sixteen paragraphs survive that revision, each headed by a "Condition" line, and it is worth counting what they actually assert. You only needed oral medications, assistance with your daily activities and general supportive services. This does not require the skills of a licensed nurse. The frequency with which the service is given is not in accordance with accepted standards of medical practice. You required skilled nursing services, but not on a daily basis. Every one of them lands on the same distinction: skilled or unskilled, daily or not daily.

None of the sixteen denies coverage on the ground that a person's condition stopped improving. The closest thing to an exception is the teaching-and-training paragraph, which turns on whether the person could learn a task rather than on whether the person is getting better clinically. And the one paragraph that uses the word improved uses it as a premise for the skilled/unskilled conclusion, not as the conclusion itself: "Your condition has improved so the services you need can safely and effectively be given by nonskilled persons."

So if the "Because" box in your hand ends somewhere other than skilled-versus-unskilled, it is either drafted wording the facility had to clear with its contractor, or it is text nobody cleared with anyone. Either way it is checkable against §70.4.5, and worth naming out loud.

The documentation, not the diagnosis, is where most of these are lost

Transmittal 179 also added a whole new section to Chapter 8: §30.2.2.1, "Documentation to Support Skilled Care Determinations." It tells reviewers that a record "must be accurate, and avoid vague or subjective descriptions of the patient's care that would not be sufficient to indicate the need for skilled care," and then does something manuals rarely do — it prints the offending phrases. Patient tolerated treatment well. Continue with POC. Patient remains stable.

Those are the three phrases most likely to be in a chart when someone stops improving. CMS explains why they fail: they give no picture of the results of treatment nor of the "next steps" that are planned. What the section asks for instead is specific — objective measurements of physical outcomes, or a clear description of changed behaviors due to education programs, recorded so that everyone can follow the results.

A person can be genuinely at risk of losing swallowing safety or skin integrity without weekly skilled input and still lose on the record, because the chart says only that she tolerated treatment well. That is a documentation failure, not a coverage rule, and it is the one that decides most of these.

The manual also warns against hindsight. Determinations "would be made from the perspective of the patient's condition when the services were ordered," and "it would not then be appropriate to deny the service retrospectively merely because the goals of treatment have not yet been achieved."

The direction that cuts only one way is in the same section. If it becomes apparent that the goal set for a patient is no longer reasonable, the manual says the treatment goal "should be promptly and appropriately modified" and the patient reassessed against the revised goal. But the provider "cannot retroactively alter the initial goal of treatment from restoration to maintenance. Instead, it would make such a change on a prospective basis only." FAQ A7 says the same thing about switching between an improvement course of care and a maintenance one.

Which is why the rewrite is a thing to ask for at the care conference, before the taper, not after the denial. Afterwards it is a change nobody is permitted to make.

Arguing about whether he is getting better is the argument you lose

The reflex, when a clipboard says plateaued, is to push back on the medical claim. He walked farther on Tuesday. He fed himself on Sunday. He is doing better than you people think.

That concedes the frame. It accepts that improvement is the question, and hands the facility a comparison it has notes on and you do not. The regulation and the manual both put the question somewhere else: what does this service require, and can an unskilled person safely do it? Ask that instead. Ask which specific service is being discontinued, who would perform it if not a therapist or nurse, and what happens to the risk that made it skilled in the first place. Then ask for the coverage rule being relied on, in writing.

Where the words actually go

Nothing above overrides the rest of Medicare. CMS FAQ A2 names three things the settlement left untouched — services must still be reasonable and necessary, outpatient therapy caps still apply, and the Part A skilled nursing benefit still stops at 100 days in a benefit period. Everything else about the benefit survives too, unmentioned because it was never at issue: the qualifying prior hospital stay, and the coinsurance for days 21 through 100, which CMS set at $217.00 per day for 2026, up from $209.50 in 2025, in its 2026 Parts A and B premiums fact sheet. A winning maintenance argument moves the reason for coverage. It does not move any of those numbers.

The maintenance argument belongs inside whichever appeal is already running. If a Notice of Medicare Non-Coverage has been handed over, the immediate step is the fast appeal with its noon-the-next-day deadline, and the Detailed Explanation of Non-Coverage that follows is required to cite a specific coverage rule — which is where the manual sections above become directly usable. If that clock has already run, the ordinary claims appeal route still exists: redetermination, reconsideration, then an Administrative Law Judge. FAQ A15 confirms the same standard binds Medicare Advantage plans, which must apply it in their own coverage decisions.

Two practical things decide whether any of this can be said out loud at all. The first is standing: the person raising the argument has to be someone Medicare will listen to, and the difference between a financial power of attorney and a healthcare proxy decides that. The second is what comes after. If skilled coverage genuinely is ending because the remaining care is not skilled, the question stops being a Medicare question and becomes a who-pays-for-custodial-care question — often a Medicaid home and community-based services program, where approval and a start date are two separate events.

Sources

All sources below were retrieved on 20 August 2026.

• 42 CFR 409.32, criteria for skilled services, paragraph (c) on restoration potential — retrieved through the eCFR versioner API against the title 42 issue date of 13 August 2026.
• CMS, Jimmo Settlement — the court-ordered corrective statement, and the Jimmo FAQs, page last modified 10 March 2026 (answers A2, A5, A7, A11, A15).
• Jimmo v. Sebelius settlement agreement, No. 5:11-cv-17-cr (D. Vt.), Docket Entry 82-1 filed 16 October 2012, approved January 2013 — Definitions 9 and 13, and Section XI on re-review relief and its two filing deadlines.
• CMS Transmittal 179 / CR 8458, issued 14 January 2014, effective 7 January 2014 — manual updates pursuant to Jimmo.
• Medicare Benefit Policy Manual, Chapter 8 (Pub. 100-02), sections 30.2.1, 30.2.2, 30.2.2.1 and 30.4.1.1(E).
• CMS Transmittal 2911 / CR 8644, issued 14 March 2014 — revised SNFABN denial paragraphs, Claims Processing Manual Chapter 30 §70.4.5; form and instructions on the FFS SNF ABN page.
• CMS, 2026 Medicare Parts A and B premiums and deductibles — skilled nursing facility daily coinsurance, days 21 through 100.
• Center for Medicare Advocacy (class counsel, named as such in Definition 2 of the settlement agreement), Federal Court Approves CMS Corrective Statement to Enforce Jimmo Settlement, 23 February 2017, and Jimmo Corrective Action Plan Completed, 28 August 2017 — the corrective action plan timeline. CMS has published no comparable account of it, so both dates rest on the plaintiffs' account.

This page is general information, not legal, medical, or financial advice. See the terms.