Pa. court decides how long Medicare should pay
Sometimes legal disputes over words seem to have little relevance to daily life. One critical exception is in the field of long-term care, where every word and every category might decide whether, when, and how much care is provided and what is the source of payment.
This fact was driven home recently in Pennsylvania when the U.S. District Court for the Western District of Pennsylvania decided that the standard used to determine Medicare payment for continuing care in a nursing or rehabilitation facility was being incorrectly applied. The case is Papciak v. Sebelius decided in September 2010. A similar action, Anderson v. Sebelius, was filed in Vermont with a similar result.
Why these cases matter to average people, especially seniors needing care, requires some explanation. Here is how the system has worked to date.
Background: A family member who is over age 65 or otherwise under Medicare goes to the hospital and his hospital or “skilled” care is covered by Medicare Part “A.” If he has a Medicare Supplement plan, he has help paying co-pays and deductibles or he might, instead, have signed up for a Medicare Advantage plan.
In any event, on release from the hospital where he has been an in-patient for at least three days, he still needs care for rehabilitation and therapy. This care can be received under his Medicare coverage, the same coverage that covered his hospital stay.
Whether this will be received and how long Medicare will cover this rehabilitation period has been a point of contention for several years.
Using the rules that have typically been applied, the patient in the nursing home or rehabilitation facility receives care until he is regarded as having “plateaued” in care.
Plateauing is a difficult concept but generally means that he no longer continues to improve with therapy on a regular, demonstrable schedule. When the patient stops improving with therapy or fails to cooperate, then two critical consequences have typically resulted.
First, therapy is discontinued. Then, coinciding with the loss of therapy, Medicare discontinues payment not just for the therapy but for other expenses, including room and board, and the patient pays from his own assets or, if his income and assets are low enough and he otherwise qualifies, then Medicaid might pick up the cost of care. To discontinue coverage, advance written notice must be provided to the patient or his representative.
The period of coverage by Medicare (and Medicare Supplements and Medicare Advantage) in a nursing home or rehabilitation center could be as little as none or as much as 100 days depending on how the Medicare standards are applied.
The average cost of nursing home care in this area of Pennsylvania is about $8,000 per month. The difference between Medicare covering rehabilitation and Medicare not covering rehabilitation could be as high as $25,000. Under the “plateau” or improvement standard, the average period covered by Medicare has been about 35 days. Another two months covered by Medicare would mean a difference of about $16,000.
Considered in another way, loss of therapy for patients who need it to prevent them from sliding back cannot be measured adequately in dollars and cents.
This leaves open the question whether “improvement” or “plateauing” is the proper standard to begin with. Some advocates have believed, with reason, that, while improvement is one test, another test, the “prevention of deterioration” or “maintenance” standard is equally valid. The Medicare regulations address this.
“(T)he 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).
The Papciak case provides one example how the “prevention of deterioration” or “maintenance” standard can make a difference.
In this Pennsylvania case, cited above, Wanda Papciak was discharged from the hospital after hip surgery. She was unable to walk or use a walker during her initial period of rehabilitation since she also had carpel tunnel syndrome. She was receiving physical and occupational therapy. After a month she was certified as having plateaued in treatment and as having reached her maximum potential, although she did require therapy to prevent deterioration.
Particularly for seniors who have trouble with therapy either because they suffer from other disabilities or because they are temporarily unable to show demonstrable progress, the “prevention of deterioration” or “maintenance” standard could mean the difference between permanent loss of function and eventual return to a healthier life.
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.