The Legal Checkup Blog
I've been following and periodically providing updates on a class action lawsuit known as "Jimmo v. Sebelius" (Kathleen Sebelius, Secretary of Health and Human Services), which was filed in The United States District Court for the District of Vermont. Plaintiffs include six individual Medicare beneficiaries and seven national organizations (including the National Committee to Preserve Social Security, Parkinson's Action Network, Paralyzed Veterans of America, American Academy of Physical Medicine and Rehabilitation, Alzheimer's Association, and United Cerebral Palsy).
Plaintiffs alleged that the Secretary has adopted an unlawful and clandestine standard to determine whether Medicare beneficiaries are entitled to coverage, resulting in the wrongful termination, reduction, and denial of Medicare coverage for beneficiearies with medical conditions that are not expected to improve.
Plaintiffs alleged that this unlawful standard is implemented at the lower levels of Medicare's administrative review process, and denies coverage where the beneficiary needs "maintenance services only," has "plateaued," or is "chronic," "medically stable," or not improving. This "rule of thumb" or clandestine policy is what plaintiffs refer to as the "Improvement Standard." If you or a loved one has ever been in a rehabilitation facility, you have probably received such a notice. This Improvement Standard is contrary to the Medicare Act and federal regulations and precludes coverage for beneficiaries with conditions that are not expected to improve or that have not improved over the course of treatment.
Plaintiffs allege that this standard has been implemented without proper rulemaking procedures against beneficiaries that have little or no understanding of its application and no ability or reasonable opportunity to confront it.
Well, we have GREAT NEWS to report!!
The Center for Medicare Advocacy and the Centers for Medicare and Medicaid Services (CMS) have agreed to settle the "Jimmo" case, also known as the “Improvement Standard” case, and have filed a proposed settlement agreement with the Court. If the judge approves the proposed agreement, a process that could take several months, the Medicare Benefit Policy Manual will be revised to correct any suggestion that continued coverage is dependent on the beneficiary improving. CMS will undertake an Educational Campaign to inform providers, contractors, and adjudicators that they can not base coverage on the potential for improvement, but on the need for skilled care.
Bravo to the attorneys from the Center for Medicare Advocacy and Vermont Legal Aid, who have undertaken this cause on behalf of the Plaintiffs. This unlawful "Improvement Standard" is an issue elder law attorneys and their clients face on a daily basis, so this is fantastic news! If you are interested in viewing the proposed settlement agreement, you may view it here.
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THE LEGAL CHECK UP BOOT CAMP (c)
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* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid);
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A great decision just came down from The United States District Court for the District of Vermont in the class action lawsuit known as "Jimmo" vs. Kathleen Sebelius, Secretary of Health and Human Services. The Defendant's Motion to Dismiss the case for Failure to State a Claim was DENIED.
For more details, go to www.thelegalcheckup.com/legislative-alerts/
We all want to age in place in our own homes, on our own terms -- any place other than a nursing home. Sometimes situations change quickly, however, and for a number of reasons it just may not be possible to remain safely in the community. It is at these times of crisis that folks often discover that all the ideas they had about their long-term care security and how they would pay for nursing home care if needed are basically … well, wrong. There are five major payment sources for nursing home care, each worthy of its own full-length column, but I offer the following brief summary to help dispel some of the myths on this topic.
The most common misconception I hear from seniors is that Medicare is going to cover all of their nursing home costs. This simply is NOT true.
Medicare will only cover “skilled” care, and only if all of the following conditions are met:
You have Medicare Part A (hospital insurance) and have days left in your benefit period;
You have a qualifying hospital stay, which is an inpatient stay of three consecutive days or more, starting with the day of admission and not including the day of discharge. (ALERT: If you are held for “observation” for part of your hospital stay prior to being admitted, you may not have met the minimum requirement. This is an issue that should be promptly appealed.)
Discharge to the rehabilitation facility either directly or within 30 days;
Your doctor orders the services you need for SNF care, which require the skills of professional personnel such as registered nurses, LPNs, phsyical, occupational, and speech therapists, and are furnished by or under the supervision of these skilled personnel;
You require the skilled services on a daily basis (5 days per week qualifies).
The availability of 100 days is not, however, a guaranteed coverage period of 100 days. In fact, it is far from guaranteed with the average period of SNF care covered by Medicare being only 23 days. You must also qualify according to the clinical criteria set forth by Medicare. Medicare requires the facility to conduct periodic assessments of your condition and goals to determine whether you will be approved for extended skilled coverage.
Medicare will pay the full cost for days 1-20, and you will be responsible for a significant daily copayment from days 21-100. Medicare does not pay beyond the 100-day period, unless you have a break in your coverage for at least 60 days. In that case, with the above conditions met again, you would have a new 100-day period available.
(ALERT: If you receive a Notice of Medicare Provider Non-Coverage informing you that your Medicare coverage will terminate because you have “reached a plateau,” “are stable,” “custodial care” or not improving, consider filing an immediate appeal. If you need continued skilled services in order to maintain your present condition, then you are entitled to continued coverage under the Medicare Act and federal law.)
Nursing home care is not automatically available to all veterans enrolled in the VA health plan. Only the following veterans automatically qualify for unlimited nursing home care:
Veterans who are seeking nursing home care for a service-related condition;
Veterans with a service-connected disability rating of 70 percent or more;
Veterans who have a service-connected disability of 60 percent and are unemployable;
A service-connected disability is a disability that the VA has officially ruled was incurred or aggravated while on active duty in the military and in the line of duty. The VA must rule that your illness/condition is directly related to your active military service, and it assigns each disability a rating. The ratings are established by VA regional offices around the country;
The VA may provide nursing home care to other veterans if space permits. Veterans with service-connected disabilities receive priority.
LONG-TERM CARE INSURANCE
The popularity of long-term care insurance is growing, for obvious reasons. The problem with this payment option, however, is that many people don’t consider purchasing long-term care insurance until they need it. When they need it, they simply will not qualify for it. If you have not had a diagnosis that would affect your ability to obtain long-term care insurance, look into it today. Even if you pay more for it based on your age, the statistics show that your investment will be well worth it down the road. In addition, there are tax incentives available for purchasing long-term care insurance, and certain qualifying policies can make your home a non-countable asset for Medicaid/MassHealth purposes. Call my office if you would like a referral to a trusted insurance professional.
This is the most non-desirable payment option for extended nursing home payment, but most folks do not do adequate pre-planning. Let me be clear. Facilities provide care, and facilities need to be paid for their services. Pre-planning is critical, however, to ensure that you take advantage of laws that allow you to protect your spouse and protect your own quality of care for the future. Private payment can average from $10,000-$12,000 per month – could you afford to pay this expense for an extended period of time without putting your spouse or your security at risk? Have you taken the necessary steps to ensure that your security will not be left to chance?
Medicaid is the federal program that is known as MassHealth inMassachusetts. When you run out of funds to pay for your nursing home care, you can apply for MassHealth coverage. An individual may only have $2,000 in assets, and a married couple may have a combined $111,560. There are some assets that are “non-countable” in that limit, such as the marital home, life insurance with a face value of $1,500 or less, a car, life insurance that you can not access or surrender (such as a group or term policy). There are a myriad of regulations that apply to specific situations, and penalties imposed if you give your funds away within the five years prior to applying for MassHealth. It is imperative to do advance planning to ensure that you apply the regulations to your particular situation in a manner that will maximize your future security without jeopardizing your eligibility for this important benefit.
This summary is far from comprehensive, but I hope it causes you to reflect on your own situation. If you would like more information on long-term care payment options or to schedule a Legal Check Up, contact us today.
It was not until two years later, after her mom had passed away, that the nursing home threatened to sue Marylou for an unpaid balance for her mother’s care. Marylou discovered that one of the documents she signed was an agreement to guarantee payment for her mother’s care. Marylou’s mom was on MassHealth for most of her stay, and her income was paid to the nursing home each month. If Marylou had not provided a personal guarantee for payment, she would not be facing a lawsuit.
Just recently I met with Tom, whose mother suffered significant injuries from an accident in a nursing home. Tom was inquiring about a potential lawsuit against the facility, but a review of the Admissions Agreement that Tom signed on his mother’s behalf revealed that he waived that right before she even moved into the facility. One of the provisions in the contract was an agreement to submit any dispute to arbitration rather than to a court of law.
Nursing homes are specifically prohibited from requiring residents to agree to arbitration or requiring a third party to guarantee payment for a resident’s care, but they can seek such guarantees on a “voluntary” basis. The problem is that people usually do not realize the significance of what they are “voluntarily” signing.
Had Marylou or Tom consulted an attorney before they signed the Admissions Agreement, they would have known their rights and ensured that any objectionable provisions were removed from the Agreements.
The message here is not that nursing homes are bad. In fact, most facilities train their staffs to properly disclose prospective residents’ rights. You must advocate for your own rights, however, and in order to do that you must first understand that you need independent review and representation in the nursing home admission process.
Nursing home residents are protected under federal and state laws. The Nursing Home Reform Law (known as OBRA ’87) promoted individualized care and protection for residents of any nursing home that participates in Medicare or Medicaid, regardless of their source of payment. Massachusetts nursing home residents are further protected by the consumer protection statutes enacted by the Attorney General (AG). The AG regulations provide that any violation of OBRA ’87 and similar laws intended to protect nursing home residents is a violation of the consumer protection statute, and the resident may be able to collect attorney’s fees and costs in addition to multiple damages.
Here are some of the protections these laws provide:
*Potential residents may not be forced to waive important rights or agree to unfair terms (such as an agreement to provide a third-party guarantee for payment or to submit any dispute to arbitration). The reality, however, is that folks are overwhelmed and want the available bed for their loved one, so they sign whatever they are asked to.
* Nursing homes are prohibited from discriminating against potential residents based on source of payment. They can ensure that they will get paid, but they can not discriminate against someone who will need to apply for Medicaid (MassHealth). The reality is that some nursing homes do give preference to potential residents who have the ability to pay privately. Some facilities will even request a guarantee from the resident or the resident’s family that they will privately pay for a certain period of time – say six months.
* Discharge of a resident for behavior or mental health problems is quite common and it is accomplished by a practice known as “dumping” where the facility sends the resident out for a psychiatric “evaluation,” and then refuses to readmit the resident. In reality, families do not know that the refusal to readmit is a violation of the law and triggers their rights to an appeal.
* A proposed transfer from one room to a non-Medicare certified bed requires 30 days written notice and the resident has the right to appeal and refuse the transfer. In reality, when Medicare coverage ends nursing homes frequently claim that certain beds are non-Medicaid rooms and for private pay only. In some cases, no written notice is issued and the family does not know that one should have been issued, much less that there is a right to appeal.
* For rehabilitation therapies, Medicare reimbursement rules do not require “progress.” The resident must need “skilled nursing services” or “skilled rehabilitation services” and even if the resident is not making progress, the facility has the obligation to provide services to “maintain” the resident’s condition and ensure that the resident’s ability to perform Activities of Daily Living does not diminish.
The reality is that residents are frequently terminated from this benefit because they are not making progress, and the families do not know that they have the right to appeal.
These are just a few of the common issues. If you are faced with the need to place a loved one in a nursing home, be sure to have the contracts reviewed by an Elder Law Attorney before you sign to ensure that you and your loved one are properly protected.