We are approaching the time of year for Medicare’s open enrollment. For you pros at this process, you know that it’s time to review your Medicaid Advantage Plan, Supplement and Drug plans to make sure you are set for another year. For you newbies, please get someone to help you through the process. It isn’t for the faint of heart.
However, there are some legal issues regarding Medicare coverage that don’t get the same kind of publicity, but are very important.
For example, a big issue with Medicare coverage is that most people and care providers incorrectly think that Medicare won’t pay much for skilled care like rehabilitation, therapy or wound dressing, in a skilled facility or at home, because they think that Medicare will not pay anymore if the patient is not showing “improvement” or “fails to progress.” This idea has become pervasive in health care, and people simply accept it as the law.
However, “improvement” is not the standard by which Medicare can stop paying for skilled nursing care; it never has been. Glenda Jimmo, who is blind and has an amputated leg, led a 2011 Vermont federal class action lawsuit against Medicare to help clarify coverage for millions of seniors. The government settled the case in 2012 by agreeing that under federal law, people cannot be denied coverage for skilled care just because they have reached a plateau and are not improving. Skilled care coverage is mandatory if medically necessary to maintain a person’s condition, prevent complications or to not backslide. This is a maintenance standard, not an improvement standard.
This was a landmark decision, and allowed any seniors denied coverage under an improvement standard to appeal their denial. Medicare agreed to rewrite its policy manuals.
Medicare also was required to educate all seniors receiving Medicare and all Medicare skilled care providers about the corrected policy. The Centers for Medicare and Medicaid (CMS) agreed to do so. However, there was no meaningful follow-up, as most providers and seniors still are in need.
On Aug. 17, 2016, the chief federal judge in Vermont issued an opinion and order requiring CMS to continue the education campaign and enforce the “maintenance coverage standard” that the law requires.
Seniors need to learn more about the Jimmo case to ensure they are properly informed and can advocate for themselves if skilled care coverage is needed beyond 25 days.
Laurie G. Steiner is a member of the law firm of Solomon, Steiner & Peck, Ltd. She is a Certified Elder Law Attorney by the National Elder Law Foundation and the Ohio State Bar Association and an accredited attorney for the preparation, presentation and prosecution of claims for veteran’s benefits before the Department of Veterans Affairs (VA). She practices in the areas of Elder Law, Medicaid, VA and Disability Planning, and Estate and Trust Planning and Administration.
