Attorney Advocate Group Works Toward Extending Medicare
Anyone on Medicare who leaves the hospital and goes to a nursing home or rehabilitation facility for therapy might inquire about cost. While the rule is that Medicare and their private health insurance may pay “up to” 100 days, most patients do not receive 100 days. This shorter time cut-off affects both cost and care. When Medicare stops paying, intensive therapy under Medicare ends too.
An organization to which I belong, the Pennsylvania Association of Elder Law Attorneys, PAELA, for short, has taken a position, backed by Court decisions, which would extend the time that Medicare and private health insurers have typically paid for care. The law is clear. The problem has been in following it.
Jeffrey Marshall, Esq., an elder law attorney with offices in Williamsport and Jersey Shore, Pennsylvania, and President of PAELA, wrote to Governor Corbett in February, 2011, laying out the case and noting that Pennsylvania taxpayers would also benefit if the proper Medicare rule is used. He also laid out a plan for Pennsylvania to become involved in correcting the situation. To read his letter, see www.paela.info at “Public Policy.”
Here is what has been happening and the reasons why elder law attorneys see justification for positive change.
The “Plateau” Standard. When a Medicare patient is discharged from the hospital after three days of inpatient care and goes to a nursing home or rehab facility for therapy, he or she and the family typically learn that Medicare will pay until therapy has “plateaued” and further improvement is not expected.
I remember 15 years ago receiving such a notice regarding my mother and being angry. How could they say that my mother could not improve further after her heart attack? Since then over the years I have seen many more families with even more extreme examples. A parent may be recovering from a broken hip and need therapy to walk again or from a stroke and need therapy to speak again but therapy may be discontinued under the “plateau” standard. After much questioning, a decision maker disclosed to me the standard she applied was whether there was steady improvement on a weekly basis.
As it happens, the “improvement” or “plateau” standard, is only one test. A second broader standard which is not generally used is “maintenance” or “prevention of deterioration.”
Another Alternative – The Prevention of Deterioration Standard
The Medicare regulations describe the “maintenance” or “prevention of deterioration” standard this way.
“The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.” 42 Code of Federal Regulations Section 409.32(c). (Emphasis added)
Think of it this way. If a patient has to show she has improved, then she has to make active, regular progress toward one or more goals. Someone recovering after surgery or who has dementia may be too frail or unable to understand instructions and not be able to meet those goals but if the standard is that therapy prevents the patient from getting worse, then continuing therapy can be ordered until it is demonstrated that the therapy would not prevent further deterioration. Sometimes the inability or unwillingness to participate in therapy is temporary. The patient becomes stronger or therapies can be adjusted. In one case handled by our office, the patient could not hear the instructions since his hearing aid had been lost at the facility. We had therapy resumed.
The Courts Have Found the “Prevention of Deterioration”Standard to also be valid.
Federal Courts agree that the “maintenance” or “prevention of deterioration” standard is valid in addition to the improvement standard. In Pennsylvania, the U.S. District Court for the Western District of Pennsylvania in Papciak v. Sebelius decided in September, 2010 that Wanda Papciak who was discharged from the hospital after hip surgery but unable to use a walker because of difficulty with her hands and wrists should have been covered by Medicare. In Vermont, a similar action, Anderson v. Sebelius, was also successful for the claimant.
As Mr. Marshall stated in his letter to the Governor, the State of Pennsylvania would benefit if Medicare covered more patients for a longer period of time. Aside from the obvious benefit of having healthy citizens recovered, Medicare is covered completely through federal payments. If Medicaid needs to pay, Pennsylvania needs to contribute almost half the cost.
For more, listen to “50+ Planning Ahead” a weekly radio program on WCHE 1520 on every Wednesday from 4:30 pm to 5:00 pm with Janet Colliton, Colliton Law Assocs., PC, and Phil McFadden of Home Instead Senior Care.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.