“Need for skilled care” is the Medicare standard for rehab payment

We are seeing an uptick in the number of fragile elderly patients whose post-hospital subacute Medicare benefits are being prematurely terminated due to lack of improvement. Before 2013, the insurance companies that were processing the post-hospital skilled care benefits under Medicare Part A were often using a “rule of thumb” whereby they would terminate benefits if the patient wasn’t improving. Families would be told that their loved one had “plateaued and we can’t bill this stay to Medicare any more.” The Jimmo vs Sebelius class action lawsuit about this issue was then settled, and CMS issued press releases and guidelines to all Medicare insurance intermediaries, reminding them that the “improvement standard” was not the only path to Medicare reimbursement. jimmo-factsheet  The law has always been that the patient’s clinical need for skilled services is the criteria to apply.

Now it seems that the old habits are re-emerging. The Center for Medicare Advocacy was back in Court, and the federal judge who oversees the Jimmo settlement ordered CMS to carry out a Corrective Action Plan to ensure compliance with the terms of the settlement. Read about it here. Skilled care benefits can last uo to 100 days.

Vigorous advocacy is needed when your loved one enters a skilled care facility after a hospitalization of three days or more. Have a care plan meeting with the treatment team and talk with the doctor to identify and address all of the patient’s clinical and nursing needs. Read the chart and monitor the patient’s progress and needs. The patient’s physician may be the greatest ally. Keep ahead of things, because once the termination of benefits notice is issued you must file your appeal extraordinarily quickly.

Call us for advocacy concerning senior care in subacute facilities. We help you secure the benefits your loved one is entitled to. … 732-382-6070

Watch out for “observation status” if patient will need skilled care after discharge

If you’ve been an advocate for a person who enters the hospital for treatment and then is discharged to a nursing home several days later, you know that after a three-day hospital admission, Medicare Part A can pay for up to 100 days of skilled nursing and physical/occupational/other therapy in a subacute or rehabilitation facility, provided that the patient requires that level of skilled services to restore or improve the patient’s functional ability or maintain their bodily health. See the Jimmo settlement for details on that coverage. A trap for the unwary is that sometimes you think your patient has been “admitted,” when in fact they are merely being held in the hospital for “observation purposes.” This is called “observation status,” and what sometimes happens is that the subacute facility’s enormous bills for skilled care are then rejected by Medicare (and accordingly, by the patient’s secondary carrier).

A bill has been introduced in Congress called The NOTICE Act,  H.R. 876, as an amendment to the Medicare statute, and would require hospitals to give actual notice to Medicare beneficiaries who were admitted to a hospital, telling them that they had been placed under “observation,” if that status lasts longer than 24 hours. The bill was approved by the House on March 16, 2015, and passed the Senate without amendments on July 27th. Click HERE for the text of the bill. As the patient’s advocate, you may need to engage the physician to ensure that the patient is actually admitted as an inpatient, if their condition calls for it. The Act would at least ensure that the patient knows what has occurred.

The Improving Access to Medicare Coverage Act S843 — was introduced in the Senate on March 24th and would actually amend the Medicare statute so that patients who were kept in the hospital in out-patient observation status for 3 days or more would be deemed to be “inpatients” for purposes of the laws concerning coverage of post-discharge subacute skilled care. That bill would actually solve the overall problem. Similar bills were introduced in the last few Congresses. It is still pending in the Senate Finance Committee. If these issues are of interest to you, contact your representatives in Washington..

 If your loved one becomes entangled in this kind of problem or  other problems concerning ongoing subacute skilled care under Medicare A at rehabilitation facilities, call us for representation … 732-382-6070.

Baby Boomers looking ahead: long term care insurance or Medicaid?

There’s no doubt about it, long-term care insurance is expensive, and the premiums can be steep if you wait until after age 70 to first buy a policy. Some companies have gotten approvals for big premium increases on old policies. The marketplace has shrunk as companies have left the business, and some companies create bureaucratic barriers to paying claims. However, there’s also no doubt that nursing home care is expensive — in New Jersey it is not uncommon for the monthly costs to hit $12,000 to $14,000 a month. Hiring a live-in to help you at your home can cost $6,000 a month.  If there’s no money and no insurance, then Medicaid is the only source of payment.

The Baby Boomers and those starting to plan their retirement years have to think way ahead, as life expectancy is lengthening and therefore the statistical risk of needing long-term care in one’s 80’s is real. The Boston College Center for Retirement Research has interesting articles and useful statustics on this subject.   http://crr.bc.edu/briefs/long-term-care-how-big-a-risk/ Their recent research shows that more people are trending towards waiting to see what happens, and then embarking on a Medicaid spend-down plan, rather than purchasing long-term care insurance. The benefit is the savings in premium dollars, of course. The downside is that the state Medicaid program may only provide a complicated or inadequate home health aide program for people residing outside of nursing homes.

As I see it, the main benefit of long-term care insurance is the way it helps people age in place at home. To remain in the home in a “naturally occurring retirement community (NORC)”, a person needs to plan out their need for hands-on assistance, transportation, medical services, grocery shopping & food preparation, and attending social & cultural events,  If you have the means, insuring for long term care costs can make a big difference in how quickly you can get your home care started and in the administrative process that’s involved after that. Policies frequently  have a 90-day waiting period. This means that once you require hands-on home health care because you’ve become dependent in two or more of the Activities of Daily Living (ADL’s), you need to cover the cost of that care during the waiting period. Depending on the circumstances, this may not be a big financial burden, because many patients are tending to their own needs at home and it isn’t until they are hospitalized due to illness or injury that they begin to have care in the home. For those patients, they may receive skilled care or “rehab” during this initial waiting period, paid for by Medicare part A or their Medicare Choice plan.

For those without such insurance, the only way to obtain in-home care is to pay for it privately or apply for Medicaid when the assets are below the required level ($2,000 in available assets; the home is not counted; there can also be a share of assets reserved for the spouse). The application is filed after the applicant’s assets reach this level, and then the long wait begins , as the application is being processed.  However, New Jersey’s MLTSS Home and Community Based Services programs  have been undergoing a massive reorganization since 2013 with an apparent shortage of staff to fully and swiftly implement the program. Everyone hopes that the snags will be worked out soon. The law requires that the county welfare agency notify the applicant within 90 days if there is a reason the application can’t be approved. This is often the opening volley in a protracted experience. So based on past experience, I think that it is still likely to take a very long time for  the county welfare agencies to process and approve the many home care applications they receive under MLTSS.

Careful planning can prevent a crisis and improve your ability to direct the course of your care plan.

Call us about planning for a good old age… 732-382-6070


Despite the JIMMO settlement, Medicare benefits are being prematurely terminated

Back in January 2013 the Centers for Medicare and Medicaid Services (CMS) settled a class action lawsuit called Jimmo v Sebelius concerning premature cutoffs of skilled care benefits under Medicare Part A. The problem was that patients in skilled care facilities after hospitalizations, who were placed there for skilled nursing and rehabilitation, were finding that their benefits were being cut off once they were “no longer progressing” towards the rehabilitation goals. “The patient has plateaued” was a common refrain that families would hear. The rule of thumb was that the patient had to meet the “Improvement Standard.” Yet  the Medicare statute authorizes payment for up to 100 days for a patient who requires skilled nursing services or skilled services from licensed personnel such as physical therapists, occupational therapists and speech language pathologists, when necessary to maintain their condition and prevent deterioration, regardless of failure to improve. And in the settlement, CMS agreed to send out clarifying directives to all facilities that participate in the Medicare program.

After two years in which facilities were apparently abiding by the CMS reminders regarding “need for skilled care” as the measure, my clients  in “rehab” centers are beginning to report to me that  the old “improvement standard” is once again being held out as the measuring rod for continued skilled care. This is evidently happening even for patients whose fragile clinical condition clearly requires the services of licensed nurses to maintain their condition and prevent further deterioration. If you encounter this problem, demand a care plan meeting to be set up. Bring a copy of the JIMMO settlement press release (attached)www.cms.gov/medicare/medicare-fee-for-service/Jimmo   and remind the staff that regardless of pressures brought by the patient’s insurance carrier, the law is the law.

For legal advocacy and representation concerning long-term care, skilled care and elder care call 732-382-6070