By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Medicaid Attorney
Often times families and patients are told by representatives of a nursing home or outpatient Medicare provider that Medicare will not pay for continued rehab, therapy or care because the patient is not improving. But is this policy legal? The short answer is no!
The Medicare Policy Manuals have been revised. These changes must be followed in NJ. The revisions have been published by the Centers for Medicare & Medicaid Services (CMS). The changes in policy pertain to care in Inpatient Rehabilitation Facilities (IRF), Skilled Nursing Facilities (SNF), Home Health care (HH), and Outpatient Therapies (OPT). Translated, it means nursing homes and outpatient visitations at home and/or health care facilities.
The Transmittal from Medicare announces the new policy revisions as follows:
Abolition of the No Improvement Standard
The “No Improvement Standard” is not to be applied in determining Medicare coverage for maintenance claims that require skilled care. Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes (i.e., to prevent or slow a decline in condition).
In truth, this policy is the required legal Medicare standard. Medicare coverage of skilled services is based on the “unique medical condition of the individual beneficiary”); (prohibiting the use of utilization screens or “rules of thumb” to make coverage decisions); 42 C.F.R. § 409.44(b)(3)(iii) (providing that the determination of whether a skilled service is reasonable and necessary “must be based solely upon the beneficiary’s unique condition and individual needs without regard to whether the illness, or injury is acute, chronic, terminal, or expected to last a long time”); 42 C.F.R. §409.32(c) “Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.”; “Rules of thumb” in the Medicare medical review process are prohibited… Medical denial decisions must be based on a detailed and thorough analysis of the beneficiary’s total condition and individual need for care.
Patients should discuss with their health care providers the Medicare maintenance standard and whether it is applicable to them. Health care providers should apply the maintenance standard and provide medically necessary nursing services or therapy services, or both, to patients who need them to maintain their function, or prevent or slow their decline. Under the maintenance standard articulated in the settlement, the important issue is whether the skilled services of a health care professional are needed, not whether the Medicare beneficiary will “improve.”
CMS has issued a Fact Sheet outlining the “new policy”. You can use this fact sheet now as evidence that skilled maintenance services are coverable for skilled nursing facility care, outpatient therapy, and home health care.
For people needing assistance with appeals, the Center for Medicare Advocacy has self-help materials available. This information can help individuals understand proper coverage rules and learn how to contest Medicare denials for outpatient, home health, or skilled nursing facility care.
To discuss your NJ Medicaid, Medicare and Elder Care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.