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?

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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
Nelsonj63 Oct 22, 2019
Hi John,

My family received notice from my moms rehab / SNF that they are releasing her before they have completed the therapy as prescribed by her orthopedist . They were initially verbally telling us it was because she had plateaued and was not showing improvement . We appealed and their QIQ declined the appeal . Their stated reason is there is no longer a need for skilled nursing care and she could move to a lower level of care.

Our mother is 88 and was living independently until she had a fall and broke both ankles. The doc did surgery and put in plates and screws . He prescribed intense PT and OT , but non weight bearing . Since the last visit , he added range of motion to begin working to resolve her plantar flexion in both feet . This therapy was to continue daily at least until next doc appt .

Given the docs orders and my mother’s current state, we don’t understand how any rational person can suddenly declare she no longer has a need for this therapy. Jimmo clearly says that “need” is the main criteria for continued coverage , so they have now moved away from arguing that she has plateaued and now saying she no longer needs it, so they shifted their game to hit on the correct term. But the fact remains that she very much does need it, especially now . Otherwise she will regress and be relegated to a state of total dependency .

Your advice and tips in this situation would be appreciated .

Thank You
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.
Helpful Answer (8)
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.
Helpful Answer (4)
Reply to needtowashhair
Judysai422 Jun 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.
Helpful Answer (4)
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
That seems to be the best way to go.
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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.
Helpful Answer (3)
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
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."
As I understand it you have a loved one in rehab that isn't progressing well enough to continue rehab. The restoration or restorative physical therapy rule that you cited is for a person receiving long-term care. In other words, medicare must pay for a person to receive physical therapy in long-term care in order for them to maintain strength. Without it they would surely worsen, especially since many long-term care facilities like their patients in wheelchairs instead of walking. What you need to do is to appeal the Medicare decision to discharge. Expect them to decline your appeal and then appeal their appeal. With that second appeal, you might have a chance to extend your loved one's time in rehab in order to determine whether they are able to return home to live independently. If you lose the second appeal, your loved one will have to pay for the extra days out of pocket. What you may not understand is that when someone is in a nursing home receiving long-term care, they may have an illness, surgery, or injury that will qualify them for rehab physical therapy. Once they "plateau", then they switch to restorative physical therapy. All of these therapy hours are paid by Medicare. It is possible to switch back and forth while in long-term care which is not rehab. If your loved one can't get Medicare to agree to additional time in rehab, then, they will need assistance in the home including Medicare physical therapists who do home visits or long-term care in a nursing home. I will add that sometimes, long-term care can work by allowing a more gradual recovery if the patient is capable with a discharge in a few months. Although not common, it can be done. In my opinion, the Medicare policies protects their bottom line in this all-to-common scenario. Of course, someone older who might have other health issues or sensitivities to therapies need a kinder more gradual rehab, but that would be expensive for Medicare. Far better to push the cost onto a different entity such as the patient's savings or Medicaid. I feel that this arrangement makes for a very stressful situation for the patient and their loved ones and doesn't really treat the patient with the respect and humanity they deserve. I speak from experience. Good luck in navigating this.
Helpful Answer (3)
Reply to lynina2
No. That's completely wrong. I wish people would at least try to read the links to I've posted. The Jimmo settlement was specifically about the 100 day rehab period after hospitalization. It is not about long term care.


Whether it's short term, long term, whatever term. I don't understand how that came into the mindset of so many people. I've actually read the underlying law governing this aspect of medicare. Even there, the bottom line is to prevent deterioration. Period. Full stop.

Please try to read the links I've posted. In Medicare's own FAQ about there not being a no progress rule, they even mention the 100 day short term period.
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