The Improvement Standard Myth and Skilled Nursing Care

March 14, 2013
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By: Brian Andrew Tully, Esq & Suzanne Paolucci, LCSW, Elder Care Coordinator

An important settlement that will have a positive effect for our clients in skilled nursing facilities was approved on January 24, 2013. The lawsuit, Jimmo v. Sebelius, was brought on behalf of a nationwide class of Medicare beneficiaries by six individual beneficiaries and seven national organizations representing people with chronic conditions, to challenge the use of the unsubstantiated Improvement Standard.

The Jimmo agreement settles once and for all that Medicare coverage is available for skilled services to maintain an individual’s condition. Under the maintenance coverage standard articulated in the Jimmo Settlement, the determining issue regarding Medicare coverage is whether the skilled services of a health care professional are needed, not whether the Medicare beneficiary will “improve.” According to the Center for Medicare Advocacy, for decades, Medicare beneficiaries particularly those with long-term or debilitating conditions and those who need rehabilitation services have been denied necessary care based on the “Improvement Standard”. This illegal practice has resulted in Medicare coverage for vital care being denied to thousands of individuals on the grounds that their condition was stable, chronic, not improving, or that the necessary services were for “maintenance only.” The use of this illegal standard has had a particularly devastating effect on patients with chronic conditions such as Multiple Sclerosis, Alzheimer’s disease, ALS, Parkinson’s disease and paralysis.

Now, Medicare can be available for therapy that is needed to maintain the person’s condition or to prevent further deterioration. It is not always necessary for the individual’s underlying condition to improve to continue to qualify for Medicare coverage!

If you or your loved one is in a skilled nursing facility and feel the skilled nursing services are ending prematurely, we encourage you to speak to staff regarding your concerns and mention to them this new standard. We also recommend that when you receive notice of services ending from the facility that you file an appeal. This can be done by contacting the appeal number provided to you on the Notice of Decision. It is important to note that this settlement does not increase the number of days Medicare pays for skilled care in a nursing facility. Currently Medicare will pay up to 100 days for skilled care per “spell of illness”.

There are certain requirements that must be met for an individual to receive Medicare skilled nursing facility (SNF) coverage. These requirements include:
1. A physician must certify that the patient needs skilled nursing facility care; and
2. The beneficiary must generally be admitted to the SNF within 30 days of a 3-day qualifying hospital stay; and
3. The beneficiary must require daily skilled nursing or rehabilitation; and
4. The care needed by the patient must, as a practical matter, only be available in a skilled nursing facility on an inpatient basis; and
5. The skilled nursing facility must be a Medicare-certified provider.

If Medicare coverage requirements are met, the patient is entitled to full coverage of the first 20 days of SNF care. From the 21st through the 100th day, Medicare pays for all covered services except for a daily coinsurance amount (the current co-payment rate is $148 per day). This co-insurance can be paid by Medicare supplemental insurance if your existing coverage has skilled nursing care insurance benefits to it. We recommend you contact your insurance company to determine if these benefits are present in your policy. Beneficiaries in traditional Medicare are not entitled to any Medicare SNF coverage unless they were hospitalized for at least three days prior to the SNF admission and, usually, they must be admitted to the SNF within 30 days of the hospital discharge.

If you would like to discuss any concerns regarding you or your loved one’s skilled nursing stay please do not hesitate to contact our office.
Additional Helpful Numbers and Links:
• The Center for Medicare Advocacy at 1-800-262-4414

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