Skilled Nursing Can’t End Because You’ve “Plateaued”

Wrongly Denied Skilled Care

Many of our clients reach out to us while they’re in a nursing home receiving rehab services, and many of them say to us something like this, “Mom’s being discharged from rehab next week because she has plateaued,” or, “My husband no longer qualifies for rehab because he’s not improving.” Maybe you’ve been told this and have faced similar issues.

Medicare Pays for Up to 100 Days of Nursing Home Care

Medicare provides up to 100 days of skilled care in a nursing home per benefit period once you’ve met the 3-night hospital stay rule and other requirements. But few patients ever get to use all their 100 days. The average length of stay of rehab services is around 21 days—far from 100 days. Nursing homes often terminate Medicare coverage for SNF care before they should.

The Improvement Standard Fallacy

Many nursing homes assume that they must stop rehab services once a patient has stopped improving. This is not in line with Medicare’s intention for skilled services, but it became the industry standard for many years. A class-action lawsuit that was settled on January 24, 2013, changed all of this. Jimmo v. Sebelius, No. 11-cv-17 (D. VT), was a nationwide class-action lawsuit brought on behalf of Medicare beneficiaries who received care in skilled nursing facilities, home health care, and outpatient therapy and who were denied Medicare coverage on the basis that they were not improving or did not demonstrate a potential for improvement (known as the “Improvement Standard”).

Jimmo v. Sebelius Outcome

As a result of the Jimmo Settlement, Medicare policy now clearly states that coverage,
“… does not turn on the presence or absence of a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care. Skilled care may be necessary to improve a patient’s condition, to maintain a patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.” (CMS Transmittal 179, Pub 100-02, 1/14/2014).

Now Medicare is prohibited from denying patients coverage for skilled nursing care, home health services or outpatient therapy because they had reached a “plateau,” and their conditions were not improving. That will allow people with Medicare who have chronic health problems and disabilities to get the therapy and other skilled care that they need for as long as they need it, if they meet other coverage criteria.

Jimmo Settlement Details

This is an Important Message About the Jimmo Settlement from the Center for Medicare Advocacy:
The Centers for Medicare & Medicaid Services (CMS) reminds the Medicare community of the Jimmo Settlement Agreement (January 2013), which clarified that the Medicare program covers skilled nursing care and skilled therapy services under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met). Specifically, the Jimmo Settlement Agreement required manual revisions to restate a “maintenance coverage standard” for both skilled nursing and therapy services under these benefits:

Skilled nursing services would be covered where such skilled nursing services are necessary to maintain the patient’s current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided.

Skilled therapy services are covered when an individualized assessment of the patient’s clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist (“skilled care”) are necessary for the performance of a safe and effective maintenance program. Such a maintenance program to maintain the patient’s current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program.

The Jimmo Settlement Agreement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve. The Jimmo Settlement Agreement is consistent with the Medicare program’s regulations governing maintenance nursing and therapy in skilled nursing facilities, home health services, and outpatient therapy (physical, occupational, and speech) and nursing and therapy in inpatient rehabilitation hospitals for beneficiaries who need the level of care that such hospitals provide.

Discharge Appeals

If you believe that skilled nursing services are ending too soon, you have the right to appeal. While in the nursing home, you should get a notice called the “Notice of Medicare Non-Coverage” at least 2 days before covered services end. If you don’t get this notice, ask for it. This notice explains how you can appeal.

Contact Kepro

You can appeal by contacting the Beneficiary and Family Centered Care Quality Improvement Organization (BFCC-QIO) no later than noon of the day after you get the “Notice of Medicare Non-Coverage.” Kepro is the BFCC-QIO for those living in Georgia.

Download the Toolkit from Center for Medicare Advocacy.

You can learn more about Jimmo vs. Sebelius and download a self-help toolkit.

We would love to hear your stories and questions. Please write to us at info@hurleyeclaw.com or reach us through our website.