Paying for Long-Term Care – Part II (Medicare cont’d)

Losscales | January 4, 2021

The Greatest Financial Risk for Seniors:

Paying for Long-Term Care – Part II (Medicare cont’d)

A client story: Patricia came to my office upset about a notice she had just received from the nursing home where her mother Florence was residing.[1] The notice said that Medicare would no longer pay for her mother’s physical therapy because Florence was no longer showing “improvement.” She would therefore be going on private pay. While Patricia understood that Medicare would not pay for more than 100 days, her mother still had nearly 80 days left. She thought the therapy had greatly helped her mother and that she was likely to get worse if it was stopped.

THE “IMPROVEMENT” STANDARD:

A NEARLY UNIVERSAL MISUNDERSTANDING ABOUT HOW LONG MEDICARE WILL PAY FOR NURSING HOME CARE

For as long as I’ve been working in the area of Elder Law, there has been a nearly universal misunderstanding in the elder-care community about what constitutes “skilled care” for Medicare reimbursement purposes. The received wisdom has been that Medicare would only pay for therapy in a nursing home if there was evidence the beneficiary had been “improving.” Once improvement stopped (or, to put it another way, once the beneficiary “plateaued”), then Medicare would no longer pay. While that has never been the law, it seems to be the basis for decisions in virtually every hospital, nursing home, doctor’s office, and home healthcare agency.

But the law had always been that nursing or therapy care needed to maintain a beneficiary’s condition, even if there was no improvement, met the Medicare definition of “skilled care” for reimbursement purposes. A federal court-approved Settlement Agreement in 2013, arising out of a class-action lawsuit against the Centers for Medicare and Medicaid Services (CMS), was supposed to have corrected this misunderstanding. Here is an excerpt from the CMS Transmittal 179, issued January 14, 2014, in accordance with this Settlement Agreement:

No “Improvement Standard” is to be applied in determining Medicare coverage for maintenance claims that require skilled care. Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes (i.e., to prevent or slow a decline in condition). 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. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves. The manual revisions now being issued will serve to reflect and articulate this basic principle more clearly. . . .

https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R179BP.pdf

Unfortunately, four years later, there is still widespread and misguided use of the so-called “Improvement Standard” by nursing facilities that denies needed nursing and therapy care for many seniors.

Here, in abbreviated form, are answers to some Frequently Asked Questions about the Jimmo Settlement, taken from the website of the Center for Medicare Advocacy (www.medicareadvocacy.org).[2]

  1. What Does the Jimmo Settlement Agreement Mean?

A: The Jimmo agreement settles once and for all that Medicare coverage is available for skilled services to maintain an individual’s condition. . . . [T]he determining issue . . . is whether the skilled services of a health care professional are needed, not whether the Medicare beneficiary will “improve.” . . .

  1. Can the Jimmo Settlement Agreement help now?

A:  Yes. The Settlement Agreement standards for Medicare coverage of skilled maintenance services apply now. . . . The law never supported the requirement that people improve in order to get Medicare. Accordingly, health care providers should implement the maintenance standard now. Patients should discuss the Medicare maintenance standard with their providers to determine if it is applicable to them. . . .[3]

  1. Does the Settlement apply to both Medicare Part A and Part B? 

A: Yes. The Settlement applies to both Medicare Part A and B. In fact, the Agreement specifically covers outpatient physical therapy, occupational therapy and speech therapy, and long term home health care, which are covered by Part B.

  1. Does the Settlement apply to both Medicare managed care (Medicare Advantage) as well as to the traditional Medicare program? 

A: Yes. The Settlement applies equally to Medicare Advantage as to the traditional Medicare program. By law coverage in Medicare Advantage plans must be at least equal to that under traditional Medicare.

  1. Does the Jimmo Settlement Agreement only apply to people with certain diseases, diagnoses, or conditions?

A:  No. The Settlement is not limited to particular conditions or diseases. It applies to anyone who requires skilled services to maintain or slow deterioration regardless of the underlying illness, disability or injury.

  1. Does the Jimmo Settlement Agreement apply to services provided at home or as an outpatient, or only to nursing home coverage?

A:  The Settlement Agreement applies to skilled maintenance services provided in all three care settings – under Medicare home health, outpatient therapy and skilled nursing facility benefits.

  1. Will the Jimmo Settlement allow people to get coverage for physical therapy at home?

A: Yes. Physical therapy, speech and occupational therapies are covered service under the Medicare home health benefit. If the individual meets the other Medicare home health qualifying criteria, the Jimmo Settlement makes it clear that “maintenance therapy” can be covered under the home health benefit if a qualified therapist is required to ensure the care is safe and effective.

  1. Does the Jimmo Settlement Agreement add to the number of days Medicare will cover in a nursing home?

A:  No. The Medicare law provides for up to 100 days of coverage per benefit period. The Jimmo Settlement confirms that Medicare coverage is available for skilled nursing and therapy that is needed to maintain a person’s condition or slow deterioration, for nursing home, home health, and outpatient therapy. However, it does not add to the number of days of coverage.

  • Remember that all other Medicare requirements must still be met. For example, [the prior 3-day hospital stay still applies for] skilled therapy in a nursing facility . . . . The homebound requirement still applies for Medicare coverage of home health care, and the annual dollar cap applies for out-patient therapies.
  1. Will the Jimmo Settlement Agreement cost Medicare too much?

A:   The Settlement only provides Medicare coverage for what the law has always required, and for which people pay into Medicare to receive. The skilled maintenance nursing and therapy that is at the heart of the Settlement is usually low-cost, low-tech care that will often prevent the individual from declining further and requiring more intense, more expensive care. In addition to being the right and legal thing to do, covering services such as those included in the Settlement Agreement may actually be more cost-effective than failing to provide these services. . . . [W]hen people receive medically necessary nursing and therapy services that enable them to maintain their functioning or slow their decline, many are able to stay home and avoid expensive hospitalization and nursing home care.

A recent study regarding a Veteran Administration (VA) care model makes this point. In the VA program primary care teams are provided to assist the highest cost patients with multiple chronic diseases in their homes. The program operates in more than 250 locations, has an average daily census of more than 27,000 patients and has shown savings where costs are the highest of 24%. It has reduced hospitalizations by over 60% and has reduced nursing home use by over 80%. Many similar programs show savings on the highest cost patients of 50% or more, while showing very high patient/caregiver satisfaction.

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The content herein is for general informational purposes only and does not constitute legal advice. For specific questions you should consult a qualified elder law attorney.

Note: Contrary to what almost everyone believes, if you or a family member has been admitted to a nursing home, it is NOT too late to protect assets. The Medicaid laws give seniors the option to protect a significant portion of their life savings, even when facing an immediate crisis, with no advance planning. However, “time works against you” when planning for long-term care; every day of delay in a crisis can result in $200 to $300 or more of irretrievable loss, so it is important that families who have a spouse, parent or other loved one needing long-term nursing care contact a knowledgeable and experienced elder law attorney for advice as soon as possible.

Kemp Scales is now retired, but elder-law attorney Schellart Los continues to serve clients throughout western Pennsylvania from offices in Erie and Titusville. She can be reached toll-free at (888) 827-2788 or by e-mail at schelly@losscaleselderlaw.com. The Law Offices of Schellart Joyce, LLC has an Internet presence at www.losscaleselderlaw.com.

  1. The names are fictitious but the situation described is a commonly recurring one with my clients. ↑

  2. The Center for Medicare Advocacy, along with Vermont Legal Aid, were the agencies that brought the Jimmo class-action lawsuit against CMS. ↑

  3. The Center’s website contains Self-Help Packets to help seniors and their families understand proper coverage rules and contest a Medicare denial for outpatient, home health, or skilled nursing facility care. ↑