June and Ward Cleaver’s Saga Continues. A Recap: Mossy Mountain Health and Rehab recently telephoned Mrs. Cleaver and told her that husband Ward was no longer making progress in his rehab therapy and Medicare would no longer pay for services. Ward had been admitted to Mossy Mountain after having suffered a stroke. Because Ward has a host of other health issues, Mossy Mountain is moving Ward to a general skilled nursing services bed . . . but Mossy Mountain told Mrs. Cleaver she needs to get them a check by Friday.

In another article, I discussed why Ward likely does continue to qualify for Medicare nursing home payments . . . at least until his 100 days are used.

What can Mrs. Cleaver do?

Advance Beneficiary Notice Requirements

Mrs. Cleaver did not receive valid notice that could result in the proper termination of services. [NOTE: Dear readers . . . I am putting some legal citations in here for the benefit of my lawyer and nursing home readers. Sorry!] Pursuant to Centers for Medicare and Medicaid Services (CMS – the federal outfit that runs Medicare) regulation, “[b]efore any termination of services, the provider of the service must deliver valid written notice to the beneficiary of the provider’s decision to terminate services.” 42 CFR § 405.1200(b) (my emphasis). To be sufficient, the notice must be both valid and written. A telephone conversation with a patient’s representative is neither written nor valid.

To be valid, a written notice must be provided “no later than 2 days before the proposed end of the services.” 42 CFR § 1200(b)(1). Clearly, if Mossy Mountain things Medicare benefits ought to be terminated, they need to give Mrs. Cleaver written notice at least two days before the proposed cutoff date. What happens if there is no valid written notice?

The nursing home pays, that’s what. Regulations specify that “[a] provider is financially liable for continued service until 2 days after the beneficiary receives valid notice as provided under paragraph (b)(3) . . . .” 42 CFR § 405.1200(b)(5). Regulations further specify that valid delivery occurs only as of the date of receipt of a valid notice acknowledged in writing by beneficiary on the face of the notice. 42 CFR § 405.1200(b)(3).

Why is valid written notice so important? Because, to be valid, the notice must explain why the nursing home believes Medicare payment is no longer warranted, when an appeal must be lodged, where an appeal must be lodged, and what the appeal rights are.

Remember, notice must contain all the information necessary to make it valid, and it must be delivered at least two days before the proposed Medicare cutoff. Without meeting those requirements, the nursing home is on the hook.

What if Mrs. Cleaver believes Ward should be entitled to Medicare (because he still needs skilled nursing services, or maybe he needs rehab in order to prevent a decline . . . read on below)? How does she appeal?

How to Make an Expedited Appeal

Had Mrs. Cleaver received a valid written notice of proposed Medicare nursing home discharge, it would have told her that she had until noon the day following her receipt of the notice to lodge an expedited appeal of Medicare termination. 42 CFR § 405.1202(b)(1). She could fax, or even telephone her appeal, to the number shown on the notice. The appeal is given to something called a Quality Improvement Organization or “QIO” which is an independent contractor staffed with medical and other personnel. In North Carolina the QIO is Carolinas Center for Medical Excellence in Raleigh; in Georgia it is Alliant GMCF in Atlanta. Mrs. Cleaver could submit additional information (if she had time for her regular family physician to submit an additional opinion, it would be very helpful).

The QIO should render a decision within 72 hours. During the pendency of the appeal, the nursing home cannot bill Mrs. Cleaver. 42 CFR § 405.1202(g). The QIO will telephone Mrs. Cleaver with its decision, and follow that up with a written decision letter a few days later.

What if Mrs. Cleaver disagrees with the QIO?

Mrs. Cleaver can appeal the proposed Medicare nursing home discharge to the Qualified Independent Contractor or “QIC” having oversight authority with respect to QIO decisions. The QIC for the eastern US (which includes both Georgia and North Carolina) is Maximus Federal Services based in Pittsford, New York

If Mrs. Cleaver wants to take it to the next step (which I advise if you sincerely believe you are correct . . . this next step is extremely easy . . . so why not?) she has until noon the day after she receives the initial notification from the QIO (and, yes, that includes by telephone!) to call in or fax an appeal to the QIC. 42 CFR § 405.1204.

Be careful! If the QIO in Raleigh or Atlanta calls and says, “We agree with Mossy Mountain, Mr. Cleaver is not entitled to Medicare coverage. We’ll send you a letter in a day or two” you have until noon the following day to request QIC reconsideration.

The QIC will take a fresh look at the file and consider any other information you have (perhaps another doctor looked at Ward in the last day or two). The QIC will notify all parties within 72 hours of its decision (usually by telephone, followed up by a letter).

What if Mrs. Cleaver Disagrees with the QIC?

The QIC decision will describe what further steps may be taken. At this point, things begin to slow down, and Mrs. Cleaver is no “on the hook” for payments to Mossy Mountain, unless Ward can qualify for Medicaid. There is still some hope.

The next appeal level is to an administrative law judge (ALJ).

The Bad News: These appeals take much longer and Mrs. Cleaver should probably hire an attorney to handle the appeal at this level (if she hasn’t already been working with an attorney). The hearing before a federal ALJ is usually handled via a video hookup. The Good News: The chances of success increase dramatically at the ALJ level because the judge will look more carefully at the law and facts. More Good News: If Mrs. Cleaver wins, she should receive a reimbursement of all that she had to pay Mossy Mountain while Ward would have been eligible for Medicare had they not made the incorrect decision.