By Nancy Burner, ESQ.
As you may know, Medicare will pay for a patient to receive rehabilitation in a facility if they have a qualifying stay in a hospital: being admitted to the hospital for two nights. The first 20 days of rehabilitation are completely covered by Medicare. The 21st through the 100th day will have a co-payment of $161 per day. This co-payment may be covered by a Medicare supplemental plan.
However, it is important to note that while there is a potential to receive 100 days of rehabilitation, it may be determined that rehabilitation is no longer needed and the discharge will be set up.
The facility is required to give written notice that they believe Medicare will no longer cover the patient. This comes as a “Notice of Medicare Non-Coverage.” This notice gives the patient the right to appeal the decision. In order to make an effective appeal, it is important to know the appropriate standard that the law requires the facility use in making a determination.
That standard was inconsistent with Medicare regulations. The true standard is whether the patient needs the rehabilitation to maintain activities of daily living.
In 2011, a federal court case was decided on this issue. In that case, Medicare skilled nursing service recipients challenged the failure to improve the standard. The settlement agreement by the parties rejected the failure to improve the standard and stipulates that the standard for terminating services is not whether the patient’s condition is likely to improve but rather whether the condition will worsen if services are terminated.
Therefore, skilled services should be continued so long as skilled therapies are needed to maintain the patient’s ability to perform routine activities of daily living or to prevent deterioration of the patient’s condition. This represents the current legal standard for denying skilled nursing coverage under Medicare.
Even though this issue was settled by the courts years ago, many patients are finding it is not being followed by facilities. It is important for the patient and their advocates to know the proper standard so they can make an appropriate appeal.
On Feb. 2, 2017, a new federal court decision stated that the standard is established but it is not being adhered to by facilities. The decision is forcing an educational campaign to be enacted so professionals at facilities and individual Medicare recipients are aware of the appropriate regulations. The plan will include a Centers for Medicare and Medicaid Services website dedicated to this issue and the explanation of the appropriate standard.
Receiving the maximum amount of rehabilitation days possible is the right of all Medicare recipients.
Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.
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