“Confusion Over Medicare Improvement Standard Persists”- Case Reintroduced and New Settlement Reached

Q. My father had a pretty major stroke several weeks ago. After being hospitalized for about 4 days, he was sent to a nursing home for rehab and has been receiving physical therapy, occupational therapy, and speech therapy.  He is still unable to swallow on his own, so he is hooked up to a feeding tube. My mom is under the impression from the staff at the nursing home that Medicare will only cover dad’s therapy if he continues to improve, which he is not. She also said that her friend’s coverage was denied when she “reached a plateau” and wasn’t making any progress. My understanding was that due to a court case from a few years ago, improvement is no longer one of the criteria for coverage. Based on your understanding, can you clarify whether or not patients are covered, even if their condition isn’t improving? Thanks for your help!
A. Because your husband is on a feeding tube, he is still clearly in need of skilled nursing care, regardless of whether his condition is improving. Every year thousands of Medicare patients receive physical therapy and other treatment to recover from a fall or medical procedure, or to help cope with the after affects of a stroke, multiple sclerosis, Alzheimer’s, Parkinson’s, and spinal cord or brain injuries.
Five years ago, Medicare officials agreed in a landmark court settlement that seniors can’t be denied coverage for physical therapy and other skilled care simply because their condition isn’t improving. In the case (Jimmo v. Sebilius), the late Glenda Jimmo, 78, was one of five Medicare beneficiaries, and six nationwide patient organizations involved in the class-action lawsuit against the Centers for Medicare & Medicaid Services filed by Center for Medicare Advocacy and Vermont Legal Aid. The court ruled in favor of Jimmo et al. that coverage doesn’t depend on the “potential for improvement from the therapy, but rather on the beneficiary’s need for skilled care.”
Under the settlement, the government acknowledged that there is no “improvement standard” under Medicare laws and conducted an education campaign for its claims processors and others in an effort to make sure they understood that improvement was not required as long as seniors otherwise qualified for coverage. Despite the settlement and the educational campaign, many healthcare professionals have ignored the settlement and have continued to behave as if Medicare has an improvement standard. And because of these healthcare professionals, untold thousands of elders who should have received ongoing skilled care have had their care terminated early because of the so-called “improvement standard,” which never actually existed under the law.
Court Battle Reintroduced
Because this problem continues to persist five years after the landmark settlement, the case was reintroduced in January 2017 to U.S. District Court Chief Judge Christina Reiss. She stated in her ruling this past week that “confusion over the Improvement Standard persists,” and accepted Medicare’s plans to try once more to correct a commonly held misconception that beneficiaries are eligible for coverage for physical and occupational therapy and other skilled care only if their health is improving. The statement the judge accepted was largely written by the plaintiffs’ lawyers and says, in part, “that the Medicare program will pay for skilled nursing care and skilled rehabilitation services when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met).”
In addition, CMS will now have to:
• enhance educational efforts, including the introduction of a special webpage with “frequently asked questions” spelling out the proper procedures for handling claims;
• issue a clear statement confirming that Medicare covers physical, speech and occupational therapy along with skilled care at home, and in other settings, even if the patient has “reached a plateau” and isn’t improving;
• hold a second training session on the policy for claims processors, appeals judges and others — something Medicare officials had opposed — and even told them how to describe it to avoid any misunderstanding.
These measures must be completed by Sept. 4. The government has 14 days to file an objection to the decision.
Although the settlement removes the necessity to show an improving health condition, it doesn’t affect other criteria and limitations on Medicare coverage.
The settlement affects care provided by a trained professional in a patient’s home, nursing home, or the provider’s private office that is medically necessary to maintain the patient’s condition and prevent deterioration.
Seniors can appeal if they were denied coverage
Although the order won’t affect seniors who have already been denied coverage, it can give them new ammunition for an appeal. According to Judith Stein, executive director of the Center for Medicare Advocacy, “If they think the reason they were denied was because the skilled therapy or nursing care was provided to maintain their condition or slow deterioration,” she said, “then hopefully this will provide more strength for an appeal and in the future more strength for the provider to submit the claim as covered in the first case.”
The Farr Law Firm assists our Level 4 clients with first-level Medicare Appeals via telephone when a nursing home is threatening our client with a discontinuation of needed Medicare benefits. The nursing home patient must have been admitted for at least three days in the hospital (note that “observation status” does not count towards those 3 days), and the nursing home stay must commence within 30 days of the hospital discharge. Read more here.
Medicare does not pay for nursing home long-term care
Keep in mind that Medicare ONLY pays for short-term therapy and skilled care in a nursing home for up to 100 days. Skilled care includes physical therapy, occupational therapy, speech therapy, wound therapy, and observation of changing conditions. Medicare will also pay for physician-authorized skilled care provided to a home-bound beneficiary on a short-term intermittent basis. If you or a loved one who is nearing the need for long-term care or already receiving long-term care or if you have not done Long-Term Care Planning, Estate Planning or Incapacity Planning (or had your Planning documents reviewed in the past several years), please call us to make an appointment for an initial consultation:
Fairfax Long-Term Care Planning: 703-691-1888
Fredericksburg Long-Term Care Planning: 540-479-1435
Rockville Long-Term Care Planning: 301-519-8041
DC Long-Term Care Planning: 202-587-2797
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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.