What Do You Mean Medicare Won’t Pay?

Hook Law News | Mar 18, 2019 | Letha Sgritta McDowell

Many clients and their families find themselves in a situation where they have had a stay in a hospital and then are discharged to a skilled nursing facility for rehabilitation and therapy.  For many this is a short-term need, and they are able to participate in therapy and return to their lives in the community.  The length of stay differs for each individual as do their needs; however, many are advised of the “100 days” for which Medicare will pay and are then shocked when they are advised 2 weeks later that they or their loved one are being “discharged,” because Medicare will not pay.

The 100 Medicare days are a rehabilitative benefit covered under Medicare Part A.  In actuality, Medicare pays the cost of skilled nursing care for the first 20 days.  After day 20, there is a daily co-insurance amount of $170.50 per day. Many individuals are never aware of the $170.50 daily cost, because their Medicare supplement plan covers that cost.  It is correct that skilled nursing care benefits under Medicare and Medicare supplements extend for a maximum of 100 days per spell of illness.  However, should the patient not meet certain standards, then the number of days of coverage may be much shorter than 100.

Unfortunately, there is a misconception among skilled nursing facilities and other providers that Medicare coverage only extends if the patient is improving or otherwise progressing in therapy.  If the patient has “plateaued,” then Medicare will no longer cover the cost of skilled nursing care.  However, this is incorrect and can and should be protested or otherwise appealed.

This incorrect “improvement standard” has been an issue nationwide for years and was the subject of a class action suit which was settled in the 2013 case Jimmo v. Sebelius.[i]  In the 2013 case, the Center for Medicare and Medicaid Services (“CMS”) agreed that the policy for Medicare payment was not an improvement standard. In actuality, Medicare should continue coverage if the patient was either making improvements or if skilled services are necessary to provide care which is necessary to prevent or slow further deterioration, regardless of the patient’s ability to improve or progress. This settlement did not reflect any change in Medicare policy; instead, it simply clarified the Medicare policy as it currently existed. In addition to the clarification, CMS agreed to revise policy direction and educate providers about the correct standard to apply.

Despite the 2013 settlement, in 2017, the issue was again brought before the federal courts. A federal judge found CMS to be in breach of the 2013 settlement agreement.  The judge required CMS to take corrective action to ensure that the appropriate standard applied, which in turn, was to assure coverage to individuals needing skilled care services and who were entitled to coverage under Medicare.  As part of the corrective action, CMS published a new web page with appropriate clarifications.[ii]      

With appropriate application, many individuals should receive care which is paid for by Medicare, regardless of their ability to “improve.” Despite this federal case and guidance issued by CMS, many clients and their families hear the term “discharge” long before 100 days of coverage.  Should this occur, there are several options to consider.  The first is whether the provider is inappropriately applying the standard.  Is the provider indicating that the patient has “plateaued” or otherwise not in need of therapy services?  If this is the case but the patient still has a skilled need such as gastronomy feeding, overall management and evaluation of a care plan, or assessment of a changing medical condition, then the patient or their family should discuss the issue with the facility or provider.  If the facility or provider refuses to cooperate, then the issue may be appealed.  The Center for Medicare Advocacy, a non-profit organization dedicated to advancing access to comprehensive benefits provided by Medicaid for older adults and people with disabilities, has developed a self-help toolkit to assist patients and their families with appeals based on this issue.[iii]

If the provider is correct and skilled care is not needed, then the patient and their family should consider what care their loved one will need.  If the loved one needs 24-hour care and they are not currently living at home, then options and settings should be considered. The patient or their family may request for them to stay at the facility in a long-term care bed.  This stay may not need to be permanent, but some individuals need additional time to recuperate from an illness, and some families need additional time to prepare appropriate living space and arrange care.  It is important to know that, whatever the patient and family decision may be, the discharge planner at every facility is required to make a safe and appropriate discharge plan.

Unfortunately, early discharge or termination of Medicare services still happens regularly.  However, patients and their families armed with appropriate knowledge may be able to extend coverage and services available to themselves or their loved ones, thus improving  their quality of life and longevity.

[i] https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/Downloads/Jimmo-Settlement-Agreement.pdf

[ii] https://www.cms.gov/Center/Special-Topic/Jimmo-Center.html

[iii] https://www.medicareadvocacy.org/take-action/self-help-packets-for-medicare-appeals/

Ask Kit Kat: Prairie Dogs

Hook Law Center: Kit Kat, what can you tell us about preservation activities in the West to protect prairie dogs and other animals of the Great Plains?

Kit Kat: Well, this really is a story of hard work and persistence which will pay off handsomely for many animals of the Great Plains. The Humane Society of the United States (HSUS) has a Prairie Dog Coalition which for years has worked to protect habitat for animals on the Great Plains such as prairie dogs, black-footed ferrets, burrowing owls, and others. It took seven years, but the Prairie Dog Coalition finally secured a two-year grant from the Pittman-Robertson Wildlife Restoration Act to research the animals on the Great Plains.  The grant will allow study in 12 states, Mexico, and Canada, to determine optimal soil types, types of vegetation and climate zones, so the target animals will be able to thrive in the future. With the data gathered, conservationists and planners will be able to make informed decisions based on scientific information. The grant, known as Homes on the Range, began in the fall of 2018 and will continue into 2020.

There is some urgency to the project. In the past 100 years, prairie dog numbers have declined by more than 95 percent. In turn, this has affected as many as nine species which depend on the prairie dog for survival. For example, borrowing owls use prairie dog burrows and black-footed ferrets need prairie dogs as one of their food sources. According to Sterling Krank, an environmental scientist with the Prairie Dog Coalition, “We’ve got to do better than always reacting. Let’s figure out a way to work together to create opportunity net gains on the ground. That’s where we make a real difference for wildlife.” This new grant, hopefully, will do just that!

(Emily Smith, “Team effort to conserve grasslands,” All Animals, January/February 2019, p. 15)

Letha Sgritta McDowell

Attorney, Shareholder, CELA
757-399-7506 | 252-722-2890
[email protected]

Letha Sgritta McDowell is a Shareholder of Hook Law practicing in the areas of estate planning, elder law, special needs planning, estate and trust administration, asset protection planning, long-term care planning, personal injury settlement consulting, guardianships & conservatorships, and tax law. Ms. McDowell’s clients range from high-net-worth individuals with over $75 million in net worth to families with limited assets.

Ms. McDowell is a past President of the National Academy of Elder Law Attorneys and was named as a Fellow of the prestigious American College of Trusts and Estates Council (“ACTEC”) in 2020. She is certified as an elder law attorney by the National Elder Law Foundation (“CELA”) and Board Certified as a specialist in Elder Law by the North Carolina State Bar Board of Legal Specialization. Furthermore, McDowell is accredited to prepare and prosecute claims with the Department of Veterans Affairs.

Ms. McDowell is currently the chair of NAELA’s strategic planning committee, a member of the Board of Directors for the North Carolina Chapter of NAELA, and a member of the Board of Directors for the Purdue Center for Cancer Research. She is the former Chair of the North Carolina State Bar’s Elder Law Specialization Committee and is the former Editor-in-Chief of “Gray Matters”, the newsletter for the Elder Law Section of the North Carolina Bar Association. She is a consultant for InterActive Legal and has worked on several law and technology initiatives including IBM’s Watson project. Along with her experience practicing as an attorney, she has dedicated much of her time writing for national publications including, but not limited to: Wolters Kluwer, Wealthmanagement.com, the NAELA Journal, Trust & Estates Magazine and many more.

Practice Areas

  • Elder Law
  • Estate & Trust Administration
  • Estate Planning
  • Asset Protection Planning
  • Long-Term Care Planning
  • Special Needs Planning
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