Counseling clients facing the prospect of $10,000 per month nursing home costs and other costs of long term care is perhaps the most challenging aspect of the practice of Elder Law. For in addition to knowing substantive law in areas ranging from public benefits to tax planning, the Elder Law practitioner must be aware of community resources such as geriatric care managers, client-centered financial advisors, and excellent providers of long term care services.
That is why I am delighted to announce the launch of a new blog devoted to long term care planning, The Long Term Care Planning Blog is hosted on the Law Professor Blogs Network. As an adjunct law professor at Roger Williams University Law School and a certified elder law attorney (CELA) I will be serving as the blog’s editor. The best part is that nationally known practitioners and other professionals whom I am known or admired for decades have agree to serve as contributing editors, including:
- Maryland elder law and special needs attorney Morris Klein, CELA
- Georgia elder and disability lawyer Victoria Collier, CELA, and co-founder of Lawyers for Wartime Veterans
- Maryland elder and disability lawyer Ron Landsman, a founding member and Fellow of the National Academy of Elder Law Attorneys
- Chicago wills, estates, and planning lawyer Kerry Peck, CELA, and co-author of Alzheimer’s and the Law
- Founder and director of Elder Care Alternatives Certified Geriatric Care Manager, Helene Bergman
- Lawyer and president/CEO of the Rhode Island Health Care Association, Virginia Burke
- Massachusetts elder law, special needs, public benefits and disability lawyer Neal A. Winston, CELA
Some of the topics we’ve covered since our launch include end of life discussions, preparing for the high cost of nursing home stays, the special training and skills required to properly help veterans, benefits for permanently disabled adult children, and what is Elder Law?.
We look forward to covering many more issues related to long term care planning over the coming weeks and months, and invite you to leave feedback and questions using the blog’s comment system, or directly to me or any of our authors via email, which you will find beside our pictures at the bottom of the blog homepage.
You can also sign up to receive new blog posts by email by clicking on “Subscribe” at the top of the blog homepage.
In a previous blog post, I alerted you to the settlement of a federal lawsuit entitled Jimmo v. Sebellius, in which the Center for Medicare and Medicaid Services (CMS) denied that there ever existed a so-called “improvement standard” for the coverage of nursing home under Medicare. Rather, CMS agreed that such coverage would be determined by the resident’s need for skilled services, not on his or her potential for improvement.
As also discussed in that post, the settlement in the Jimmo case was only the beginning of potential relief for nursing home residents in this situation. The problem was—and remains—that this belief that skilled nursing home services under Medicare ceases when a nursing home resident has “plateaued” is deeply ingrained in the practices of nursing homes.
That is why nursing home residents seeking coverage under Medicare welcome news, announced January 14th, that CMS has revised its Medicare Benefit Policy Manual. Quoting from the announcement:
In accordance with the Jimmo v. Sebelius Settlement Agreement, the Centers of Medicare & Medicaid Services (CMS) has agreed to issue revised portions of the relevant program manuals used by Medicare contractors, in order to clarify that coverage of skilled nursing and skilled therapy services “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 current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.
This is a huge revision to the source of guidance—the Medicare Benefit Policy Manual—actually used by nursing homes. Predictably, since the approval of the Jimmo settlement over a year ago, families continue to report to us that words like “plateaued” and “no further improvement” are used by nursing homes to explain why continued Medicare coverage for skilled nursing services is denied. Now that the Manual actually used by nursing home service providers has been used, nursing home residents will be able to get the full extent of Medicare coverage to which they are entitled.
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.
As a result of a proposed settlement agreement reached in litigation, there appears to be clarification of the “improvement standard” as a prerequisite to a nursing home resident continuing to receive Medicare skilled nursing home benefits.
Once implemented, this will enable nursing home residents who have been discharged from a hospital and told that they can no longer receive Medicare benefits to continue to do so provided that they need skilled services, even to maintain level of functioning. According to Marsha Greenfield of LeadingAge,
“The settlement is expected to be approved by the court within the next few months, after a hearing to ensure that the settlement is fair to the plaintiffs. The final settlement is expected to certify a nationwide class of beneficiaries, estimated at 10,000, whose skilled nursing or home health services claims were denied by Medicare prior to Jan. 18, 2011, the filing date for the lawsuit.”
For more information, see the alert, Settlement Reached to End Medicare’s “Improvement Standard”, from the Center for Medicare Advocacy, Inc.