Elder Law of Louisville's Blog

Wednesday, September 22, 2010

Despite What They Say, Medicare Does Not Require Improvement For Nursing Home Coverage

The Center for Medicare Advocacy has launched a campaign to end what they call an unfair standard for covering Medicare beneficiaries whose conditions may not show improvement.  They are looking for stories that will help make the case for needed changes in the interpretation of the law. If you can provide information on individuals whose Medicare coverage is denied because an underlying condition will not improve or they have plateaued or they are not likely to improve or they need maintenance services only, please have these individuals contact the Center at or contact the Center at (860) 456-7790 or send email

The law/regs are very clear that restoration/improvement is not the test for whether skilled nursing should continue:

42 C.F.R. § 409.32   Criteria for skilled services and the need for skilled services.

 (a) To be considered a skilled service, the service must be so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel.

 (b) A condition that does not ordinarily require skilled services may require them because of special medical complications. Under those circumstances, a service that is usually nonskilled (such as those listed in

§409.33(d)) may be considered skilled because it must be performed or supervised by skilled nursing or rehabilitation personnel. For example, a plaster cast on a leg does not usually require skilled care. However, if the patient has a preexisting acute skin condition or needs traction, skilled personnel may be needed to adjust traction or watch for complications. In situations of this type, the complications, and the skilled services they require, must be documented by physicians' orders and nursing or therapy notes.

 (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. For example, a terminal cancer patient may need some of the skilled services described in §409.33.

 Somehow, the universal standard has evolved to be that the skilled nursing patient must be improving in order to be eligible for ongoing skilled nursing such as physical/speech/occupational therapy.  This makes no sense that I can see considering rehab facilities are paid more when a resident remains on Medicare.  In any case, it is great to see this issue receiving attention.  I hope that more and more the industry will apply the correct standard so that people will be that much more likely to receive the 100 days to which they are likely entitled.

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