Once again I have encountered the infuriating problem of "Observation Status." A client's loved one was admitted to a Boston hospital as a result of a crisis. I instructed my client to confirm that his father had been formally "admitted" to the hospital, and his response was a bit incredulous. "Of course he was admitted -- he has been in the hospital for four nights!" His response was completely logical, of course, but my concern was realized when my client confirmed that the hospital still had his father listed on "Observation Status."
In general, Medicare will only provide coverage for skilled rehabilitation services at a nursing home if the patient had a minimum of a three-night stay and is transferred directly from the hospital to the nursing home. My client's father could not safely return home, and would need to be placed in a skilled nursing facility, so we advocated for his status to be changed (for him to be "admitted") and ensured that he had the required three-night stay before being transferred to the nursing home. (Just to be clear - staying at the hospital on "Observation Status" for three nights does NOT qualify as a three-night stay. One must be "admitted" before midnight for that night to qualify.)
Unfortunately, most people are not working with an attorney and do not find out about this problem until much later when they are charged for various prescriptions and services they received in the hospital or, worse, when they receive a huge bill from the nursing home. It is far more difficult to successfully appeal the "Observation Status" at that point, but an appeal should be pursued.
On November 3, 2011, the Center for Medicare Advocacy and the National Senior Citizens Law Center, filed a nationwide class action lawsuit to challenge this illegal practice on the basis that it violates the Medicare Act, the Freedom of Information Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the United States Constitution. (Bagnall v. Sebelius, No. 3:11-cv-1703, D. Conn)
In the meantime, you need to know your rights and advocate for yourself. There are a number of self-help packets (and a wealth of information on this and other topics) on the Medicare Advocacy website at http://www.medicareadvocacy.org. Call me at 781-681-6638 if you need advocacy to protect your rights on this or a related issue, or you can find an elder law attorney in your area through the website of the Massachusetts Chapter of the National Academy of Elder Law Attorneys at www.massnaela.org.
Education is the best defense! Please share this information with your friends and family to prevent them from being the next unsuspecting victim of this illegal practice.
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