You had a fall and were admitted to the hospital for five days. You are discharged from the hospital to an in-patient rehabilitation facility. If you have traditional Medicare or certain Medicare Advantage plans, since you have spent three full days, including three nights, “admitted” to the hospital as an in-patient, you qualify for Medicare paid skilled nursing care in the rehabilitation facility.
Traditional Medicare will pay the entire cost for the first 20 days of your rehabilitation services. For the next 80 days of your rehabilitation, if needed, traditional Medicare will cover the excess over $148 per day, in 2013. If you have a retiree health insurance policy from a former employer or a Medigap Medicare Supplement policy, the policy may cover the $148 daily co-pay.
After 100 days, traditional Medicare will no longer pay for rehabilitation services. If there is a break of at least 60 days, during which you require no rehabilitation services, you may qualify for another 100 day rehabilitation period.
However, long before the 100 days is up, you may be told by representatives of the rehabilitation facility that Medicare coverage of your rehabilitation is ending. The reason that you are given is that you are no longer progressing and that you have “plateaued”. You are told that since you are not making any improvements, Medicare will no longer pay for your rehabilitation services. It is explained to you that Medicare will only pay for rehabilitation services if it results in you getting better.
For decades, this “improvement standard” had been in use by Medicare providers nationwide and enforced by the Centers for Medicaid & Medicare Services (“CMS”). CMS is the Federal agency responsible for administering the Medicare program.
Since there was no basis in law or regulation for this “improvement standard” and was arbitrarily being used throughout the country, a consumer advocacy group called the Center for Medicare Advocacy (“CMA”) filed a class action lawsuit against CMS. The case of Jimmo v. Sebelius was settled by CMA and CMS earlier this year.
As a result of this case, CMS has acknowledged that “The Medicare statute and regulations have never supported the imposition of an ‘Improvement Standard’ rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition.” CMS has also stated that “Medicare policy has long recognized that there may also be specific instances where no improvement is expected but skilled care is, nevertheless, required in order to prevent or slow deterioration and maintain a beneficiary at the maximum practicable level of function.”
The Medicare regulations specifically state that 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.”
CMS did not admit to enforcing this “improvement standard”. In fact, the Jimmo v, Sebelius settlement agreement specifically stated, “Nothing in this Settlement Agreement modifies, contracts, or expands the existing eligibility requirements for receiving Medicare coverage.”
However, CMS did admit that “The settlement agreement is intended to clarify that when skilled services are required in order to provide care that is reasonable and necessary to prevent or slow further deterioration, coverage cannot be denied based on the absence of potential for improvement or restoration. As such, any actions undertaken in connection with this settlement do not represent an expansion of coverage, but rather, serve to clarify existing policy so that Medicare claims will be adjudicated consistently and appropriately.”
So what does this mean for you. It basically means that there is a new standard or rule for the continuation of Medicare rehabilitation services. Instead of an “improvement standard” for the continuation of these services, there is a “getting worse” standard. During your 100 days of Medicare coverage for rehabilitation services, those services must continue if the stopping of those services would result in you getting worse.
The new rule that CMS claims was always the rule, is that you still qualify for Medicare coverage for rehabilitation services during the 100 day period if you require a covered level of skilled care in order to prevent or slow further deterioration in your condition .
Although the rule has changed, many Medicare rehabilitation services providers are still using the old “improvement standard” to determine when the services should stop. We regularly receive calls from family members, including this past week, who have been told by the Medicare rehabilitation services providers that a loved one has “plateaued” in his or her treatment or that the loved one is “not progressing”.
If this happens to you or a loved one, insist on the use of the “getting worse” standard. Give the provider a copy of the Jimmo v. Sebelius Fact Sheet which is found on the CMS website at http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/Downloads/Jimmo-FactSheet.pdf.
If the provider still does not follow the rules, appeal the decision. Be extra vigilant because you may have very short time frames for the appeal, sometimes less than 24 hours. When you get the notice of denial of the continuation of Medicare coverage of rehabilitation services, read it carefully, and follow the deadlines provided.
For additional assistance, go to the CMA website at www.medicareadvocacy.org. On the CMA website, you can find self-help packets to assist with the appeals of both in-home and in-patient rehabilitation services “Improvement Standard” denials.
If you find yourself or a loved one needing rehabilitation services after a hospital stay, stand up for your rights. You have paid for your Medicare. You should get the benefits for which you have paid.
By: Matthew M. Wallace, CPA, JD
Published edited June 9, 2013 in The Times Herald newspaper, Port Huron, Michigan as: No such thing as plateau for Medicare rehabilitation