For decades, when short-term rehabilitation patients in nursing homes failed to show improvement but still needed skilled nursing in the form of custodial care or therapy, Medicare would routinely terminate their Medicare coverage, forcing these patients prematurely into private pay or, if they could financially qualify, Medicaid. This need for ongoing “improvement” was a pervasive, though unwritten ”rule of thumb” followed by Medicare and by Medicare contractors when doing Medicare evaluations in nursing homes. However, nothing in the Medicare statute or its regulations has ever stated that “improvement” is required for continued skilled care.
A class action lawsuit, Jimmo v. Sebelius, was filed against the Obama administration in January 2011 in federal court. This case and a similar case in Pennsylvania aimed at ending the government’s use of the “improvement standard” were both settled by the Government. This settlement should result in Medicare no longer focusing on “the presence or absence of an individual’s potential for improvement.” Rather, Medicare must continue to provide short-term care whether or not the patient is improving, provided the patient needs skilled care.
It must be understood that Medicare coverage for nursing home care is still a very limited type of short-term benefit, as it only covers a maximum of 100 days per benefit period, and only if the patient requires skilled nursing care. However, under the new settlement, Medicare coverage should no longer be terminated just because the patient’s medical condition is no longer improving. On the contrary, coverage should remain available for services that are needed to maintain the person's condition or to prevent further deterioration.In summary, Medicare coverage in the past has often been erroneously denied for individuals with chronic conditions, for people who are not improving, or who are in need of services to maintain their condition. With this new government settlement, it should no longer be necessary for an individual’s underlying condition to be improving in order to continue to get Medicare coverage! I emphasize the word should because the people who implement these policies may not conform to the new settlement as quickly as they should, so coverage appeals may be necessary in the short run until the local workers on the ground all get educated about this new shift in governmental policy.
Luckily, the Medicare program has an appeal system to contest improper termination of coverage. Beneficiaries and their advocates should use this system to appeal Medicare determinations that unfairly deny or limit coverage.For more information about this settlement, see:
To appeal what you believe is an improper Medicare termination in a nursing home, please download this self-help packet:To appeal what you believe is an improper Medicare termination of home health care, please download this self-help packet:
MEDICARE HOME HEALTH SELF HELP PACKET
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