Clearing Up Medicare’s Confusing Nursing Home Rules

Your 85 year old father is being released from the hospital because his pneumonia has finally resolved, but he either won't eat or eats poorly. Will Medicare pay for nursing home care?

For many years, nursing homes told their patients that Medicare would not pay for room and board if the patient stopped improving or had "plateaued."

In 2013, a federal court settlement prompted the government to make an admission about this policy:

"Medicare has never supported the imposition of this ‘Improvement Standard' rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient's condition."

In the recently updated Manual for Skilled Nursing Facility (SNF), Inpatient Rehabilitation Facility (IRF), Home Health (HH), and Outpatient (OPT) Coverage, the government now admits that Medicare "coverage depends not on the beneficiary's restoration potential" but simply "on whether skilled care is required."

How to ensure Medicare will pay

There should now be no question as to whether Medicare will pay for your father's nursing home room and board if he won't eat and is being discharged from the hospital.

This is one of several sample scenarios that can be found in the Medicare Manual chapter on Coverage of Extended Care (SNF) Services Under Hospital Insurance. The chapter also outlines situations where observation and monitoring of your father by skilled nursing personnel may be covered because it is needed to prevent problems (such as dehydration) that could result from his loss of appetite.

Other "observation" cases where Medicare should keeping paying during the 100-day period after a hospital discharge include:

 

  • A person with heart disease who needs monitoring of his digitalis dosages.
  • A person who has just had a bypass and needs to be watched for vascular supply to his extremities.
  • A person recovering from hip surgery who may be subject to phlebitis or skin breakdown.

 

To obtain coverage, you must make sure that the physician and the nursing home staff give detailed descriptions and reasons for the skilled services that are needed to promote the patient's medical safety.

Hiring a geriatric care manager or geriatric nurse to track the nursing home chart and accompany you to care plan meetings may be a wise investment. Without an experienced advocate to help you build the record—and an elder law attorney to carry the case forward, if necessary—you could end up feeling very lonely because the nursing home staff believes they're at risk for not getting paid by Medicare for a patient who has complex needs and isn't showing obvious signs of improvement.

Additional examples of reimbursable observation

A patient who has a history of heart failure may need continuous observation just to detect signs of decompensation, abnormal fluid balance or reaction to medications. Even if no episode or complications ever develop, the Medicare manual says that nursing home observation days should still be still covered if there is reasonable potential for future complication.

Other instances when Medicare must pay for a nursing home stay include "management and evaluation of a patient care plan."

For example, the pneumonia patient who is lethargic and disoriented deserves skilled care, despite the fact that residual chest congestion alone is not a risk factor. The patient's immobility and confusion require skilled care, to prevent a relapse.

Also, a diabetes patient who is recovering from angina needs skilled care to coordinate her treatment, which could involve skin care, medications, diet and exercise.

Another category, called Direct Skilled Nursing Services, qualifies certain unskilled services for Medicare coverage, provided that the combination of services is so complex that they can only be safely performed under the supervision of a registered nurse (RN) or licensed practical nurse (LPN).

Examples include the 80-year-old man who is bed bound after surgery, and develops muscle atrophy and edema. Here the old "improvement standard" begins creeping back into the new understanding of Medicare nursing home payment rules. The Medicare manual's post-surgery example says the program will cover the nursing home "to the extent the patient requires a brief period of physical therapy to recover lost function."

Nursing home care coverage for dementia

The most common question about Medicare and nursing home coverage that I see in my elder law practice comes from the families of people who have dementia and memory loss. Can these patients use all 100 days of their Medicare nursing home coverage?

You might think so—even though the April, 2014 update to the chapter on Medicare payment for post-hospital nursing home care does not specifically mention Alzheimer's or any other dementias.

But there is one paragraph that does mention coverage rules for people who, in addition to physical problems, have a psychiatric diagnosis. "These patients may exhibit acute psychological symptoms such as depression, anxiety or agitation, which require skilled observation and assessment such as observing for indications of suicidal or hostile behavior."

At first glance, one would think that the 100 days should now be almost guaranteed for memory loss patients, since depression and anxiety are so common for them. But the Medicare manual quickly qualifies the hope for coverage, saying "these conditions often require considerably more specialized, sophisticated nursing techniques and physician attention than is available in most participating SNFs" and "SNFs that are primarily engaged in treating psychiatric disorders are precluded by law from participating in Medicare."

There is so much room for interpretation (and reinterpretation) surrounding the rules for Medicare coverage for nursing home stays, that it's easy for families to become confused on how to pay for this kind of care. As one Reuters report states, the new understanding of Medicare long-term care coverage is "off to a rocky start."

The Medicare manual offers what is perhaps the most solid piece of instruction in its conclusion, saying "these cases must be carefully documented." The bottom line is that vigilance and advocacy by family members will be necessary to protect a loved one's eligibility for Medicare nursing home coverage.

John L. Roberts, J.D., is an Elder Law Attorney serving clients in Hampden County, MA. After practicing for 15 years, he confronted the challenges of family caregiving when his own father developed dementia. The experience transformed his practice, enabling him to help clients who are family caregivers from a place of true understanding.

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