Monday, May 16, 2011

Getting Medicare to Pay for more of your Nursing Home stay

If you are in a skilled nursing facility after a hospital stay and you meet certain other conditions, Original Medicare Part A (hospital insurance) can help pay for up to 100 days of your stay.  (If you get your health care from a Medicare Advantage Plan (like an HMO or PPO) you must get at least the same coverage as provided by Original Medicare as described in this article.)

Medicare Part A Hospital insurance pays for all covered services for the first 20 days. For the next 80 days, it pays for all covered services, except for a daily co-insurance amount.

It is important to understand that Medicare does not pay for “custodial care” when that is the highest level of care that is required by a nursing home resident. The resident must be receiving “skilled care” to qualify for Medicare payment. Thus, the determination of whether a skilled nursing facility resident requires custodial care vs. skilled care is crucial to obtaining Mediare coverage. If a resident does not qualify for Medicare, they must find another source of payment for nursing home costs, such as private payment resources or Medicaid.

What is Custodial Care

Medicare does not cover custodial care if it is the only kind of care you need. Custodial care is care that does not rise to the level of skilled care. It is care that helps you with usual daily activities like getting in and out of bed, eating, bathing,dressing, and using the bathroom. It may also include care that most people do themselves, like using eye drops, oxygen, andtaking care of colostomy or bladder catheters. Custodial care is often given in a nursing facility.

What is Skilled Care

Skilled care is health care given when you need skilled nursing or rehabilitation staff to manage, observe, and evaluate your care.

Section 409.32 of the Medicare Regulations define skilled care as follows:

§ 409.32 Criteria for skilled services and the need for skilled services.

(a) To be considered a skilled service, the service must be so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel.

(b) A condition that does not ordinarily require skilled services may require them because of special medical complications. Under those circumstances, a service that is usually nonskilled (such as those listed in §409.33(d)) may be considered skilled because it must be performed or supervised by skilled nursing or rehabilitation personnel. For example, a plaster cast on a leg does not usually require skilled care. However, if the patient has a preexisting acute skin condition or needs traction, skilled personnel may be needed to adjust traction or watch for complications. In situations of this type, the complications, and the skilled services they require, must be documented by physicians' orders and nursing or therapy notes.

(c) The 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. For example, a terminal cancer patient may need some of the skilled services described in §409.33. [42 C.F.R. §409.32, emphasis added]


Generally, skilled care is available only for a short time after a hospitalization. Custodial care may be needed for a much longer period of time. Examples of skilled care include intravenous injections and physical therapy. Care that can be given by non-professional staff is not considered skilled care. Skilled care requires the involvement of skilled nursing or rehabilitative staff in order to be given safely and effectively.

Skilled nursing and rehabilitation staff includes:

• registered nurses;

• licensed practical and vocational nurses;

• physical and occupational therapists;

• speech-language pathologists; and

• audiologists.

Who makes the Level of Care Determination

The initial decision as to whether a resident needs skilled care is made by the staff at the nursing facility. While facilities may vary somewhat in the procedures used in making Medicare eligibility determinations, the following is typical.

Professional staff such as therapists and nurses, along with appropriate adminstrative staff will meet to discuss residents who are receiving Medicare Part A benefits. (The medical director of the facility is not normally present or involved in these meetings, but will typically sign off on the decision made by the staff.) If the professional staff determines that the resident is no longer going to be progressing (improving), the decision will be made to cut the resident from Medicare.

For example, a resident’s physical therapist may make the decision that the resident is no longer improving (has “plateaued”). Based on the therapist’s determination, the decision will be made to cut the resident’s Medicare benefits the following week. Administrative staff of the facility will then notify the resident’s representatives of the decision to cut Medicare. They will be told that the resident has a right to appeal the decision and given the number for the Quality Insights Organization (QIO) to call if they want to exercise this right. The verbal notification to the resident/representative is usually given at least 4 days before the cut is to occur. A written notification is sent or delivered confirming the cut.

The endemic problem with the above procedure is that the professional staff and administrators are employing an incorrect standard (the “improvement standard”) to determine whether the resident should continue to qualify for Medicare. As a result, many nursing home residents are cut from Part A benefits prematurely.

Nursing Homes mistakenly deny Medicare coverage for their residents.

The misconception that a resident must be progressing in order to qualify for continued Medicare coverage is a “Medicare tradition that has become virtually an urban myth among the providers and contractors who are largely responsible for making Medicare coverage decisions. The myth is that coverage of skilled care requires a beneficiary to be improving. The myth denies Medicare coverage to a beneficiary who has “plateaued,” is “medically stable,” or needs services for “maintenance only.” All of these shorthand terms essentially impose an improper requirement that results in termination of Medicare coverage for beneficiaries who have chronic conditions and who, sadly, are probably most in need of the care that is being denied them.”[1]

The proper rule, as noted above, is 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).

Nursing facility residents should qualify for Medicare if skilled treatment is needed either (1) to improve their level of functioning, or (2) to maintain the level of recovery they have already attained. However, nursing homes have been failing to submit Medicare claims for residents in the 2nd “maintenance” category.

Two recent federal court cases have held that the application of the “improvement” standard is incorrect. Papciak v. Sebelius, 742 F. Supp. 2d 765 (Western District, PA, September 28, 2010, dealt with skilled nursing facility services and Anderson v. Sebelius, 2010 U.S. Dist. LEXIS 113550 (USDC Vermont, October 25, 2010), dealt with home health services. In addition, On November 17, 2010 CMS published a final rule to update various aspects of the Medicare Home Health regulations which disavows the use of the improvement standard. Federal Register: November 17, 2010 (Volume 75, Number 221), Page 70371-70486.

Despite the regulation and the federal court cases, nursing facilities in Pennsylvania continue to impose the “improvement standard: as a matter of course. If a resident is no longer materially improving, they are denied Medicare. Nursing homes don’t follow and may be unaware that the law provides that even if the resident is not improving, Medicare is still authorized so long as skilled services are necessary for the establishment of a safe and effective maintenance program. While material improvement is sufficient to authorize Medicare, it is not required.

The premature termination of Medicare coverage is harmful to residents because they are denied therapy that is needed to prevent further deterioration or preserve their current capabilities. And it hurts nursing facilities by transitioning residents from higher paying Medicare status to lower paying Medicaid. However, nursing facilities are cautious because of their fear that a facility decision to continue Medicare will later be rejected by CMS. This could leave the facility with no recourse to recover the cost of the care it provided.

This is an area where informed advocacy by the resident’s family and a certified elder law attorney can improve the resident’s care while deferring the need for private payment.


[1]How the 'Improvement Standard' Improperly Denies Coverage to Medicare Patients with Chronic Conditions,” Clearinghouse Review, Vol. 43, No. 9-10, Jan-Feb. 2010.

2 comments:

Socialfuel said...
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Aaron Skloff said...

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