Elder Law: “Medicare and Skilled Nursing Care”

The National Academy of Elder Law Attorneys (NAELA) recently published a short article on updated Medicare standards since the court case Jimmo v. Sebelius successfully challenged the “improvement standard.” Prior to Jimmo, this was the standard necessary for patients to demonstrate in order to keep their Medicare coverage while receiving funding for up to 100 days of skilled nursing care.  (NAELA News, Volume 26, Issue 4, Aug/Sept. 2014.)

This article reminded me how few senior citizens understand the nature of Medicare funding of Long Term Care, and how that compares to Medicaid (or, in Minnesota, Medical Assistance) funding of Long Term Care. Below is a very brief summary of both and the limitations/qualifications for each, which is designed to educate individuals so they can advocate for themselves and/or know when a skilled advocate, such as an Elder Law attorney, may be a helpful advocate on the individual’s behalf.

MEDICARE      Most seniors understand their day-to-day interactions with Medicare fairly well because they’ve chosen their plans and use them for health care services and prescriptions regularly – experience builds understanding. But, I’ve found that most don’t understand the limitations on Medicare funding when it comes to skilled nursing care (hospitalization, intermediate care, or skilled nursing facilities).

Medicare is only the “front line” for long term care. In other words, it’s a temporary and limited source of funding, not a permanent source of funding if an individual requires more than a few months of skilled nursing care. Medicare funds up to 100 days of skilled nursing care, but does not guarantee funding the full 100 days if the individual does not maintain his/her eligibility. Below are a couple of common impediments to Medicare coverage.

Hospital Status     If the individual is not actually admitted to a hospital for at least three days (observation status does not count as admitted), the coverage that follows in a skilled nursing facility will not kick in.  Therefore, the first issue for which individuals need to be prepared to advocate is their hospital status.  Talk to the doctors, find out the status of admission, and make sure you understand the reasons for the status given and your opportunities to appeal that decision, if necessary.

“Reasonable and Necessary” Standard    The Jimmo case mentioned above has forced a change in how the standard of eligibility for Medicare funding is maintained by an individual, once admitted to the skilled nursing facility. Before Jimmo, the standard was an “improvement” standard, which required that the services provided for an individual while receiving long term care in a skilled nursing facility were “improving” the individual’s health – if not, continuation of coverage was denied.  Now, coverage will continue for up to 100 days as long as the services being provided are shown to be “reasonable and necessary” to either maintain the health of the individual or at least keep the health of the individual from deteriorating any further.

Despite the efforts of the CMS (Center for Medicare and Medicaid Services) to republish guidelines and re-educate professionals on the revised standards in the wake of Jimmo, there remain denials of Medicare funding based on using the wrong standard. Obviously, during such a significant re-education process, there are bound to be “slow-learners.”   The Center for Medicare Advocacy has even posted self-help information for those patients and advocates trying to determine if their denials of funding are appealable:

http://www.medicareadvocacy.org/medicare-info/improvement-standard/

Appealing a Decision    An individual can appeal a denial of coverage. An attorney may be helpful in these efforts, especially one that has experience in this area. Elder Law attorneys often specialize in this area and could be a valuable resource as you consider your choices.

MEDICAID (MEDICAL ASSISTANCE in Minnesota)     Once the limited Medicare coverage is exhausted, sometimes the crisis is over, but sometimes it is just the beginning of what can be very expensive, more permanent long term care needs. In short, if you require more than 100 days of long term care in a skilled nursing facility, you will be required to handle the funding in one of the following ways (or a combination thereof):

1. Your own funds (income and assets),
2. Long Term Care Insurance, if applicable, and/or
3. Medical Assistance, which is Minnesota’s state funded program, and for which you must become physically/medically and financially eligible.

If you are not familiar with the standards of and eligibility for Medical Assistance (MA) in Minnesota, or the nature of the coverage, visit my blog for more information on those eligibility standards and requirements (use “search” in the top right corner and type in “Medical Assistance” to bring up this topic in the archives).

Medicare and Medical Assistance can feel like a complicated morass of rules, regulations, and mysterious decisions. If you are having trouble understanding or maneuvering through a Medicare and/or Medical Assistance denial of coverage, you may wish to seek the advice of an Elder Law attorney, who can serve as an experienced advocate for you as you navigate your choices and pursue your options.

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.