I could retire if I had a dollar (better make it five dollars) for every client who had been told she would not qualify for further Medicare nursing home coverage because she was no longer improving or had “plateaued”.

Nonsense. Time to bust a myth!

Medicare Nursing Home 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 hospitalized for at least three days. Second, the patient must be admitted to the nursing home for at least one of the underlying conditions treated in the hospital.

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 longer needed when, in fact, the patient indeed requires skilled services as broadly defined under the Medicare regulations.

What is “Skilled”?

Skilled services 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

Often nursing homes may mistakenly require a resident to be improving or showing 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”. A number of court cases prohibit the use of “rules of thumb” and require individual assessment of an individual’s needs.

Unfortunately, the “improvement standard” has wriggled its way into the system and is improperly applied at all levels, from nursing homes to the appeals level. One reason may be that there are so few advocates who are aware of the rules and who have the skills to appeal a coverage denial.

There may be some help on the way from the courts. Two recent federal court decisions in the past few months agree with my position. Both courts, relying on the regulations discussed above, held that Medicare can pay for skilled care if it is needed simply to preserve a patient’s current functioning or prevent further decline.

Papciak v. Sebelius

In September the US District Court for the Western District of Pennsylvania found in favor of Wanda Papciak, an 81 year old who had Medicare covered services denied by a nursing home on the basis that she was unlikely to improve.

Ms. Papciak sued the Obama administration claiming that Medicare should have considered whether she required skilled nursing care to maintain her current level of functioning.

The court held that “[t]he 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.”

Anderson v. Sebelius

Sandra Anderson, a 60-year-old buy percocet online woman who had been receiving home health care covered by Medicare following a second stroke, sued when Medicare cut off her benefits.

In October , the US District Court in Vermont ruled in Anderson’s favor holding that “[a] patient’s chronic or stable condition does not provide a basis for automatically denying coverage for skilled services.”

The Pols Weigh In

Recently a group of House Democrats wrote the administration on the issue. “Beneficiaries are frequently told that Medicare will not cover skilled services if their underlying condition will not improve. . . . For example, as people with multiple sclerosis are often not likely to improve, skilled services such as physical, occupational and speech therapies that are necessary to slow the progression of the disease, or maintain current function, are denied. As a result, these individuals’ conditions deteriorate –frequently leading to more intense, more expensive services, hospital or nursing home care.”

Unfortunately, the administration has so far been unwilling to correct its guidelines. That leaves the courts as the last resort. While the recent court opinions add fuel to the growing clamor to enforce the law as written, as district court decisions they have little more than persuasive relevance outside of western Pennsylvania or Vermont.

Fortunately, the nonprofit Center for Medicare Advocacy recently announced an effort to combat this myth. The first approach is to prod the federal regulators to issue clear guidance. If that does not work, litigation will follow.

Wish them luck! Improper denials often harm those most in need of help. These include not only older patients, but also those with disabilities such as Multiple Sclerosis, Alzheimer’s, Lou Gehrig’s, spinal cord injuries, diabetes, and others.

Stay tuned.