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Michigan Elder Law Today

Monday, December 17, 2012

Changes to the Medicare Improvement Standard

For years, seniors with long-term conditions and age-related frailty who have needed rehabilitation care in nursing homes have been denied Medicare coverage for their care based on an “improvement standard.”  The improvement standard was that Medicare would not pay for physical therapy and other rehabilitation when the elder’s condition was stable, chronic or not improving.  Medicare would only pay for up to 100 days of care if the care would improve the senior’s condition.  The problem was there was no actual improvement standard in the Medicare law.  Rather, the improvement standard had been written in the various manuals the government issues to long-term care and skilled rehabilitation facilities (nursing homes), and the care staff were using the manuals to determine that Medicare would no longer pay for seniors’ care.  The improvement standard particularly effected seniors who have chronic conditions that do not get better such as Alzheimer's disease, Parkinson's disease or dementia.  While the symptoms of Alzheimer’s disease that a senior has may not get better with physical rehabilitation or other therapy, such services could help maintain their overall health condition or at least prevent a further decline in their health.  The improvement standard was preventing such seniors from receiving Medicare coverage for maintenance therapy.

A nationwide class action lawsuit, entitled Jimmo vs. Sebelius, was filed to challenge the improvement standard.  The lawsuit was recently settled.  The effect of the settlement is that the Center for Medicare & Medicaid Services (CMS), the federal government agency that administers the Medicare program, will revise the Medicare policy manuals in order to correct suggestions that Medicare coverage is dependent on a beneficiary "improving." The new policy provisions will state that Medicare can cover skilled nursing and therapy services necessary to maintain a person's condition, which will bring the Medicare manuals in line with the actual Medicare law.

It is important to remember that Medicare will still only cover up to 100 days of skilled nursing and rehabilitation services.  The Jimmo settlement does not change that.  Rather, the settlement will help ensure that more seniors get their full 100 days of Medicare coverage, even if the additional therapy will just help them maintain their current condition.  The continuation of such therapy may allow some seniors to recover enough to leave the nursing home.  For others, it may at least slow further deterioration of their health.  In addition, the settlement does not change the copay requirement.  While Medicare Part A covers all of the first 20 days of rehab. and skilled nursing services, beginning on the 21st day, there is a $144.50 daily copay that the patient must pay.  Often, this copay will be covered the senior’s supplemental health insurance policy.  Also, if a senior needs so much assistance with the activities of daily living that they just need to living in a nursing home, the senior may still need to qualify for Medicaid long-term care coverage to help pay the nursing home bill on an ongoing basis; the Jimmo settlement also does not change that.


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