The Legal Checkup Blog

Medicare "Improvement Standard" is a Barrier to Skilled Services

Posted by Judith Flynn on Sun, Sep 25, 2011 @ 21:09 PM

I frequently deal with wrongful termination of Medicare benefits for my clients, assisting them through the appeals process or advocating directly with the facilities for some additional coverage. 

The typical scenario involves an elder who has suffered a crisis in the community, whether a fall, a stroke, or some other acute condition that brings her to the hospital.  After a few nights in the hospital, she is discharged to a rehabilitation facility for skilled therapy.  After a short period of time, perhaps a few days or a week, her spouse is notified that her Medicare coverage will be terminated in a day or two, and that she will be discharged home or they will be responsible to pay privately for her continued stay at the facility at a cost of $350-400 per day!

I assist my clients to immediately request an appeal of the termination of benefits because the basis of the termination of benefits is almost always illegal.  The basis for the termination of coverage is usually described as “medically stable," "custodial level of care,” or "plateaud." These bases for termination of Medicare coverage are in violation of the Medicare Act and federal law.

42 CFR §409.44(c)(2)(iii) provides for maintenance health care and therapy.  It states that “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.”  In addition, the regulations support coverage if the condition will improve OR the skills of a therapist are necessary to perform a safe and effective maintenance program.

Application of an “improvement standard” to justify termination of benefits to a patient is illegal, as the only reference to a requirement for improvement potential in the law pertains to a “malformed body member.”  The imposition of an improvement standard in the typical rehab setting described above results in wrongful termination of skilled services which patients require to maintain their present condition, and often results in further harm and deterioration when the skilled services are terminated prematurely.

If you or your loved one receives a Notice of Medicare Provider Non-Coverage for any of the reasons listed above, call us right away to assist you in appealing the wrongful decision.  781-681-6638.

Tags: elder law, Medicare, Community Care, termination of benefits, skilled services, federal law, improvement standard