Cases & Controversies – An Open Enrollment Guide for Newcomers

Cases & Controversies – An Open Enrollment Guide for Newcomers

- in Insurance, Legal, September/October 2016
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For you pros at Medicare open enrollment, you know that this is when you review your Medicaid Advantage Plan, Supplement and Drug plans to make sure you are set for another year.

For newbies, there are some legal issues regarding Medicare coverage that don’t get much publicity but are very important.

SKILLED NURSING AND WHAT’S COVERED

Many people incorrectly think that Medicare won’t pay much for skilled care such as rehabilitation, therapy, wound dressing and other daily health needs in a skilled facility or at home. Services and Medicare billing are stopped quickly because they think that Medicare will not pay anymore if the patient is not showing “improvement” or he “fails to progress.” This idea has become pervasive in health care, and people simply accept it as the law.

However, “improvement” is not the standard by which Medicare can stop paying for skilled nursing care; it never has been. A 2011 federal class action lawsuit against Medicare was filed to help clarify coverage for millions of seniors. The government settled the case in 2012 by agreeing that under federal law people cannot be denied coverage for skilled care just because they have reached a plateau and are not improving.

Coverage is necessary if the person needs skilled care to maintain his or her condition, prevent complications or to not backslide. This is a maintenance standard, not an improvement standard.

Medicare also was required to educate all seniors receiving Medicare and all Medicare skilled care providers about the corrected policy. The Centers for Medicare and Medicaid (CMS) agreed to do so.

In 2014, they released instructions and updated Program Manuals for Medicare billing and appeals agencies. They issued a fact sheet to inform providers and the public about the change. They were supposed to spot check nursing homes, home health care agencies and other providers to make sure they were using the correct standards. There was no meaningful follow-up. The case ended up back in court. In August, a federal judge is-
sued a ruling requiring CMS to continue the education campaign and to enforce the “maintenance coverage standard” that the law requires. Time will tell if CMS will do what is required to be done to help the millions of seniors affected.

Meanwhile, seniors need to learn more about the so-called Jimmo case and use their clout to force changes at CMS. We need to stand up for more skilled care coverage when the nursing home tries to end therapy after only 25 days of the allowable 100 days or stops home skilled care for a disabled person.

About the author

Laurie G. Steiner is a member of the law firm of Solomon, Steiner & Peck. She is a certified elder law attorney by the National Elder Law Foundation and the Ohio State Bar Association. She practices in the area of elder law, Medicaid, VA and disability planning, and estate and trust planning and administration. She can be reached at 216-765-0123 or at http://www.ssandplaw.com/

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