Why The Standard Is No More.

What To Do If The Nursing Home Says It Applies.

Has this happened to you?

The nursing home calls. “Mrs. Cleaver, Ward is failing to progress in his therapy and because of that he will no longer be eligible for Medicare benefits after Thursday . . . you’ll need to make arrangements to start paying us on Friday.”

Ward was admitted to Mossy Mountain Health and Rehab 20 days ago for rehab after having a stroke 30 days ago. On the day of his stroke he was rushed to Shady Valley General and after a few days in ICU and a week of other treatment was discharged to Mossy Mountain for rehab. In addition to the ongoing paralysis from his stroke, Ward also suffers from a number of other serious health conditions (perhaps aggravated by his stroke) and his “regular” family doctor says he very likely needs to remain in a skilled nursing environment.

Mrs. Cleaver meets with me a few days later and tells me “we need to hurry and get Ward on Medicaid because I can’t afford to pay Mossy Mountain $8,000 a month.” After determining that Ward is on “regular” or “traditional Medicare Part A and Part B [CAUTION: What I discuss in this article applies to “traditional” Medicare Part A and Part B . . . Medicare Advantage Plans have different requirements and appeal rights], I ask Mrs. Cleaver if she ever received a written notice from the nursing home that Ward was no longer eligible for Medicare payment. “No . . . they just called me and told me.” She then tells me that the nursing home has moved him to a “regular” room where he can receive monitoring of, and help with, his other health conditions. But they want money NOW.

Mossy Mountain is wrong. Ward is entitled to Medicare coverage. Mrs. Cleaver should appeal.

First, let’s discuss why Ward is entitled to continued Medicare coverage. Then we’ll discuss how to appeal the denial in the February 15, 2013, issue of Elder Law Update.

Ward probably IS entitled to Medicare reimbursement because there is no such thing as a “failure to progress” standard for Medicare. Also, even if Rehab Services were neutral (neither hurting or helping Ward), he still needs skilled level of care that will be reimbursable by Medicare. I’ll explain.

[NOTE: Dear readers . . . I am putting some legal citations in here for the benefit of my lawyer, nursing home, and professional caregiver readers. Sorry! Be brave.]

FIRST: A Few Medicare Basics

Medicare pays a limited amount of nursing home care, but the care that is paid can be critical to the patient. In order to qualify, however, the patient must meet specific requirements.

First, the patient must have been an inpatient in a hospital for at least three days. 42 USC § 1395x(i). Second, the patient must be admitted to the nursing home for at least one of the underlying conditions treated in the hospital OR for a condition which arose in the nursing home after his admission from the hospital for treatment of one of the conditions for which he was hospitalized. 42 USC § 1395f(a)(2)(B).

Third, the nursing home resident must receive skilled level of care on a daily basis. “Skilled services” actually cover a broad array of services. A common reason given for cutting off Medicare coverage is that “skilled services” are no longer needed when, in fact, the patient indeed requires skilled services as broadly defined under the Medicare regulations. 42 USC § 1395f(a)(2)(B).

What is “Skilled”?

Skilled services are services that require technical or professional personnel such as registered nurses, licensed practical nurses, physical, occupational or speech therapists. In order for a service to qualify as “skilled”, it must be so inherently complex that it can only be safely and effectively performed by, or under the supervision of, professional or technical personnel.

Importantly, skilled services can include “observation and assessment of a changing condition” as well as “overall management and evaluation of a care plan”. So, for example, monitoring of fluid and nutrient intake might be necessary to prevent dehydration.

The Level Truth About Plateaus

Nursing homes have been requiring a resident to show improvement or progress in order to continue skilled services and maintain her Medicare coverage. If a resident “plateaus”, or the nursing facility says the resident no longer has rehabilitation potential, the facility may deny her further coverage. Denying Medicare coverage for this reason is improper.

The Medicare regulations are clear that “restoration potential” is not a valid reason for Medicare coverage denial. Other regulations provide coverage for “maintenance programs based on initial evaluations and periodic assessments”. The confusion should clear up soon . . . a federal court case settlement with the Center for Medicare and Medicaid Services (CMS – the federal outfit that runs Medicare) will have effects throughout the country.

The Jimmo Case

In Jimmo v. Sibelius, No. 11-cv-17 (D.Vt.), the federal court for the District of Vermont finalized a settlement between the parties, including CMS, on January 24, 2013. The final settlement, with the force of law, recognizes that the “improvement standard” is an erroneous application of the law. CMS has also agreed to undertake a program to educate all providers and contractors throughout the United States that the “failure to progress” standard is not, and has never been, an appropriate standard.

CMS has also agreed to implement a procedure to review cases that were denied Medicare benefits on the basis of “failure to improve” on or after January 18, 2011. The procedures are to be announced.

If you or a loved one are denied Medicare benefits on this basis, you should appeal the denial. The appeal process will be discussed in a February 15, 2013 post (the next issue of Elder Law Update).

You may download a copy of the settlement at http://bit.ly/10SkCO1.

OK . . . What If Rehab Was Neither Helping Nor Preventing Decline?

If Rehab services for Ward really were NOT medically necessary because the therapy was not helping Ward to improve OR preventing him from further decline, the next question is whether Ward continues to need some other kinds of skilled services other than rehabilitation services. Because Ward has been

moved to a general skilled bed at Mossy Mountain and his doctor says he needs to remain at Mossy Mountain, it seems that Ward does need skilled services on a daily basis (although perhaps not rehabilitation services).

Nevertheless, Mossy Mountain says that Ward no longer qualifies for Medicare nursing home payments.

The confusion for many nursing homes is a result of misunderstanding the rules that relate to the conditions for initial admission to the nursing home necessary to secure Medicare reimbursement. They don’t read the WHOLE rule. For the sake of clarity, here is the relevant part of the rule:

[To be eligible for Medicare reimbursement in a skilled nursing facility, the patient] needs or needed on a daily basis skilled nursing care . . . for any of the conditions with respect to which he was receiving inpatient hospital services . . . prior to transfer to the skilled nursing facility [NOTE: This is where most folks stop reading!] OR for a condition requiring such extended care services which arose after such transfer and while he was still in the facility for treatment of the condition or conditions for which he was receiving such inpatient hospital services.

42 USC § 1395f(a)(2)(B).

Accordingly, if Ward had been admitted to Mossy Mountain for rehabilitation services and later was said to have “plateaued” or was “failing to progress” he would remain entitled to Medicare reimbursement if the rehab therapy was necessary to enable him to maintain his condition and not regress. Even if it was later determined that rehabilitation services were not medically necessary because Ward would not benefit from them (he would neither improve nor decline as a result of having or withholding those services), but it was determined that Ward required skilled services for other conditions, he would be entitled to Medicare reimbursement.

If Mrs. Cleaver had read this article and believed that Ward was entitled to continued Medicare reimbursement notwithstanding the telephone call from Mossy Mountain . . . what could she have done?

Read how she could appeal . . . quickly . . . and cheaply.