Rhode Island Elder Care Lawyer Blog

A Nursing Home Myth Exploded: Medicare Can Pay Even After A Resident “Plateaus”

The typical scenario goes like this. Dad is living alone at home, suffering from Alzheimer’s or a related dementia. He falls and fractures a hip. With Daughter’s help, he is admitted to a hospital for three or more days. Dad is then discharged to a nursing home, specifically into its skilled “rehabilitation unit.”

No one at the nursing home says anything to Daughter about payment when Dad is admitted. A few weeks go by, and still no word about payment. Daughter assumes that Medicare will cover the costs, but she’s primarily concerned with Dad’s health and doesn’t give it much thought.

Unexpectedly, after several more days at the nursing home, the charge nurse tells Daughter that Dad has “plateaued” in his rehabilitation. Accordingly, he will be downgraded in a few days and will have to be discharged from the rehabilitation unit. The nursing home suggests Daughter visit other nursing homes in the area with “long-term beds” and select one, since Dad “will not be able to stay here.”

Daughter is confused and alarmed. “Why not?” she asks. The charge nurse patiently explains that because Dad has “plateaued” in his care and is “not improving,” he must be discharged from the skilled unit. She is sympathetic, but explains that those are “just the rules”

However, the charge nurse is wrong. For decades, it has been an article of faith in nursing homes that once a person “plateaus,” he or she can no longer receive benefits under Medicare. This is the basis for the nursing home’s decision to terminate Dad’s Medicare coverage. But in a federal court in January 2013, the government stated that this has, in fact, never been the rule.

The case Jimmo v. Sebelius is a class action suit in which Glenda Jimmo, 76, of Bristol, Vermont and several national groups, including the Alzheimer’s Association and the Parkinson’s Action Network, sued the government challenging the use of this so-called “improvement standard.” The government, rather than litigating the case, settled with Mrs. Jimmo and the other plaintiffs.

In this settlement, approved by the federal judge, the government denies that there ever was any “improvement standard” of the type which was the basis for the nursing home’s decision to terminate Dad’s Medicare coverage.

Moreover, the government agreed to “clarify” the manuals used by nursing homes to determine whether residents are entitled to Medicare benefits. Specifically, the manuals will make it clear that Medicare coverage does not depend on a patient’s potential for improvement from nursing care, but rather on his or her need for skilled care.  This is a major change in the procedure around Medicare coverage in nursing homes.

Back to the story. Dad needs the services of a physical therapist and occupational therapist to deal with his hip fracture. So the Jimmo case means that Dad can continue to remain in the skilled rehabilitation unit of the nursing home, right?

Unfortunately, it’s not that simple. The nursing home charge nurse is not in the habit of following federal court decisions in Vermont. She only knows the way things have always been done, and continues to insist that Dad will downgraded in a few days, relying on the manual that the nursing home has used for decades — the same one that the government has agreed to “clarify”.

And since government moves very slowly, it will be many more months, perhaps years, before this “clarification” is finally implemented.  So what can Dad do in the meantime to assert his rights to Medicare coverage?

The answer is: he must appeal the denial of Medicare coverage. The rules on how to appeal, and particularly the timing of the filing, are specific and strict. How Dad should proceed with his appeal will be the subject of the next post in this series.

In the meantime, if you find yourself or a loved one faced with this situation, go to www.medicareadvocacy.org, the website for the Center for Medicare Advocacy, which spearheaded the Jimmo case. Among the exceptionally useful aids on this website are self-help packets designed to guide someone faced with this immediate issue.

Categories: Medicaid & Medicare, Nursing Homes

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