A family member just went into rehab for a fall after hospitalization. The facility informed me that if there was no improvement in her physical capability, say being able to walk again, that she would be discharged since that is the medicare requirement. There has to be continual improvement. But the way I understand it, there is no progress standard. That standard was applied for years incorrectly. If you look at the actual law that governs Medicare, it clearly states that the criteria is to prevent further deterioration, not improvement. Due to the Jimmo lawsuit settlement, Medicare agreed to inform people of this fact. Right in the revised Medicare manual, it says.

"No “Improvement Standard” is to be applied in determining Medicare coverage for maintenance claims that require skilled care."

Here's the underlying law.

"(c) 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."

Does anyone have any insight into this? What the SNF is telling me seems to be at odds with what Medicare says. How should I handle this? Should I ask them for clarification now or should I wait until, or if, they try to discharge due to no improvement?

Years after a Federal Court tried to end this misunderstanding about Medicare coverage, the Center for Medicare Advocacy says it "still regularly hears from beneficiaries facing erroneous 'Improvement Standard' denials in home health, skilled nursing facility, and outpatient therapy settings."

The Center encourages Medicare beneficiaries and their families to appeal unfair “Improvement Standard” denials, even though Medicare patients "and their families should not be in a position of having to educate providers, contractors, and adjudicators about Medicare policy."

They advise patients "and their families to continue citing to the Jimmo Settlement and related materials when challenging denials."

But the most effective way to avoid the need to fight a Medicare appeals (which is not likely to succeed) is to engage the physicians and caseworkers before the time they must make a decision to terminate their Medicare billing.

A Geriatric Care Manager or Advocate who understands the patient's needs, the medical providers, and their billing practices, gives you the best chance to gather the facts needed to continue care paid by Medicare. Hire the advocate as soon as the patient is in the hospital, before being discharged to a facility, and you give yourself the best chance to better results.

These professional Advocates are privately paid by the patient. But the cost is worth the benefit of having an objective advocate working alongside you and your family.
Helpful Answer (6)
Reply to John L. Roberts

Also this has nothing to do with your question but really emphasize to your LO the importance or doing all the therapy so she/he can get back where they used to live. Otherwise it’s a step up to the next level of care. I know, we’ve been there twice now. Many time they are stubborn and resistant.
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Reply to Harpcat

My father and I just experienced this situation- the rehab. facility wanted to discharge due to lack of progress. My father appealed to Medicare and Medicare supported him to stay in the facility. In fact, Medicare stated that my father was making progress and it was medically necessary for him stay. This happened a second time and Dad stated that he would appeal again- interestingly, the facility allowed him to stay another week until he felt safe to leave rehab. Don't be afraid to appeal!
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Reply to Retired16

There's no issue right now. We just started so aren't even close to being near the 100 days. As part of the admission process, they pointed out the criteria for discharge being "no improvement", whether that's in 10 days or 100 days. I asked for clarification saying she could walk before she had the fracture, so shouldn't she recuperate until she can walk again or at least until the fracture mends? They said if she stops making progress and plateaus, whether she regains function or whether the bone is not mended, then that becomes her new baseline and she will be discharged regardless of her condition.

Looking at the Jimmo settlement, progress is not the criteria. In the update to the CMS manual, they clearly state that it's not. The bottom line criteria is to prevent deterioration in function. That's not even due to the Jimmo settlement. That's been the law for over 25 years. The Jimmo settlement was that Medicare needs to enforce that law instead of letting people get discharged for "no improvement".

I spoke to Medicare and they said I should appeal if there's a "no progress" discharge. Which I think now is the way to go. It could not be an issue. Why make it an issue now? I also spoke to our supplemental insurance company and they said there is no policy for "no progress" discharges during recuperation.
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Reply to needtowashhair
Judysai422 Jun 23, 2019
Interesting...for my mom it was cooperation. They said if she did not participate they would discharge. I would ask to speak to the head of the facility for clarification. Have the law right in front of you and ask how they fulfill the legal requirements.
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For the record, I responded to this query because the writer asked for insight. Apparently, my insight is not considered "correct" despite my experience with this area not for one parent but two. I am sorry that you aren't open to hearing what was the truth in my experience. And by the way, I did read the links that you provided and am familiar with the Jimmo settlement. Before the Jimmo settlement, patients in long-term care did not receive physical therapy. Fortunately, the Jimmo settlement made quality of life better for them. John Roberts answer is good, especially in that he recommends advocating for your loved one with the physical and occupational therapists and physician at the rehab facility before discharge occurs. That means communicating well (including listening) and demonstrating respect instead of anger.
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Reply to lynina2

There is a third option.... wait until a couple days before they plan to discharge and then appeal the decision.

this will get kicked up to Medicare. If Medicare again refuses, then either she must pay herself, or she must move to a long term facility or home.
Helpful Answer (3)
Reply to Katiekate
needtowashhair Jun 20, 2019
That seems to be the best way to go.
Ask them if they've read Jimmo. Tell them that they will be speaking to the patient's lawyer.
Helpful Answer (3)
Reply to BarbBrooklyn

This is interesting and I'll need to research more on Jimmo, however I am currently facing the same possible determination re: in-home care and therapy. Basically, once a patient begins to perform at capacity, meaning they reach a stable point (no longer making strides, or progress has ceased), they will discharge from in-home and we can seek outpatient therapy, adult daycare, etc. Either private pay or if you qualify, Medicaid. I look at Medicare as a 'step down' shorter term phase between the event/illness and long term condition/lifestyle. Proactivity is key, so important, and your loved in is fortunate to have you as their advocate.
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Reply to Starre64

You do realize that the 100 days only means what Medicare will pay up to. Only 20days do they pay 100%. 21 to 100, 50%. Hopefully supplimental will pick up some of it but the patient pays about $150/$160 a day. Thats a total of 12k that the patient pays Out of Pocket. Patients hit a plateau where they can do no better than they r doing. At that time Medicare has them released. They don't cover maintainance in a rehab setting. Mom got some therapy at her AL and some at her LTC. If you feel ur LO would benefit with homecare therapy, request it. I think it may last only so many days, stop, and then Medicare pays again so many days later. Medicare is not going to pay for the high cost of a rehab stay if the person is not progressing or refuses the therapy.
Helpful Answer (3)
Reply to JoAnn29
needtowashhair Jun 23, 2019
Once again, that's completely not true. There is no "plateau" criteria for discharge. The bottom line criteria is to reduce deterioration. It's not medicare that stops paying. It's the facility that stops billing. Medicare has a section of their website devoted to explaining this. Here's a link to it again.

"Q7: Can a patient change from an improvement course of care to a maintenance course of care, and vice versa?

A7: Yes."

"Such a maintenance program to maintain the patient's current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program."
Is your family member close to 100 days ar are they pushing discharge early? The Medicare rules are very clear but you cannot squeeze more than 100 days without paying full care. OT and PT can continue post discharge. It progress has plateaued then consider Medicaid
Helpful Answer (2)
Reply to MACinCT

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