Medicare Payments for Rehabilitation for Nursing Home Stays-Submission to MN Elder Law Section by Member

ITEMS OF INTEREST

Denial of Medicare Skilled Care Coverage Due To “Plateauing” is Improper.

More than 60% of all nursing home stays by Medicare-eligible individuals are for less than three months. Because short stays are usually for rehabilitation following a hospitalization – and many long-term care policies have a 90 day waiting period – it is imperative that our clients receive Medicare coverage for the first 100 days. Unfortunately, at about day 20, most clients get a notice terminating coverage because they are not improving – or that they have “plateaued.” The Medicare statute and its implementing regulations do not contain an “improvement” standard, and it is up to us to so inform our clients. Luckily, two recent cases finding there is no improvement standard will help our clients get the coverage to which they are entitled under the statute.

By law and regulation, Medicare pays 100 days of skilled nursing care “per spell of illness” as long as a hospital admission of three midnights precedes admission to the nursing home. Medicare pays 100% for the first 20 days and there is a daily co-pay of $137 for days 21-100.

“Skilled Care” in a nursing home is defined as services that:
(1) Are ordered by a physician;
(2) Require the skills of technical or professional personnel such as registered nurses, licensed practical (vocational) nurses, physical therapists, occupational therapists, and speech pathologists or audiologists; and
(3) Are furnished directly by, or under the supervision of, such personnel.
42 C.F.R. § 409.31(a). Further, “the beneficiary must require skilled nursing or skilled rehabilitation services, or both, on a daily basis” and “the daily skilled services must be ones that, as a practical matter, can only be provided in a SNF, on an inpatient basis.” 42 C.F.R. § 409.31(b).

There is no “improvement” requirement for coverage. In fact, the opposite is true. The Secretary’s regulations state 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.” 42 C.F.R § 409.32(c).

“Improvement” is, however, firmly embedded in the Medicare culture–so much so that, previously, appeals to the nursing home’s Medicare nurse or to Stratis Health, Minnesota’s Quality Improvement Organization, were a wasted effort. “Our guidelines requirement improvement” or “This is how it has always been” were frequent responses. Apparently, nursing homes and the intermediaries believe nursing homes will not be reimbursed by the Center for Medicare and Medicaid Services (CMS) for any case where no improvement can be shown. Therefore, and almost as a matter course, coverage is denied after 20 days. One client told me that nursing home staff told her at admission that Medicare would pay the first 20 days and she would be responsible after that!

Two recent decisions, Anderson v. Sebelius and Papciak v. Sebelius, reject the Medicare “improvement” standard. Anderson deals with home health care and Papciak with nursing home care. Both cases analyze the skilled care requirement and expose the “improvement standard” myth. Every time we meet with clients, we need to warn them that even though they are legally entitled to 100 days of coverage, they will have to fight for it. They have paid for Medicare since they started working and they are entitled to 100 days of coverage if they are receiving rehabilitative care. Help them file the appeal, show these cases to the nursing home, nursing home lawyers, and the entity hearing the appeal. The Medicare Advocacy Project would like to hear stories of individuals whose benefits have been denied because they plateaued.
See http://www.medicareadvocacy.org/Projects/Improvement/ImprovementMain.htm.

Submitted by Laurie Hanson
Chair, Communications Committee
Elder Law Section
lhanson@mnelderlaw.com

About Kate Willmore, Esq.

Kate Willmore, Saint Cloud, Minnesota, divorce, custody and family attorney brings over 25 years experience to every client's legal matter. *** Licensed in Minnesota and in California

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