Elder Law Attorney Provides Update on Class Action Suit Against Medicare’s 100 Day Rule

Question:  In yesterday’s Q&A, which dealt with Medicare’s 100 day limit for reimbursement of nursing home rehabilitation, Attorney Siebert said that there was a class action suit just settled for the 100 day rule which if a person was not making progress under skilled care that Medicare would cease to cover that cost and the patient would be moved to non-skilled care. As of what date did this go into effect since my mom had this issue and was moved to non-skilled November 29 or 30, 2012 and I paid the balance of November and all of December in advance.

Answer:  The effective date for the rule will actually be retroactive. The initial proposed settlement was filed in federal District Court on October 16, 2012. On November 20, Chief Judge Christina Reiss of the District of Vermont signed an order preliminarily approving the settlement agreement. By December 10, 2012, notice of settlement was posted on the websites of numerous organizations, including the seven national organizations that served as plaintiffs in the case, which will alert advocates and beneficiaries to the terms of the settlement. Class members will be able to file written objections to the settlement. The court will hold a Fairness Hearing on January 24, 2013 “to determine whether the settlement agreement is fair, reasonable and adequate,” after which it is hoped that the judge will issue an order permanently approving the settlement agreement.

When the judge approves the proposed agreement, CMS will revise the Medicare Benefit Policy Manual and other Medicare Manuals to correct suggestions that Medicare coverage is dependent on a beneficiary “improving.” New policy provisions will state that skilled nursing and therapy services necessary to maintain a person’s condition can be covered by Medicare. The settlement clarifies that Medicare will cover nursing or therapy services that require the skills of a qualified professional in the skilled nursing facility, home health, or outpatient setting. Examples of such skilled services include: physical therapy to maintain the patient’s condition or to slow deterioration, and nursing services for wounds that are not healing.

Once finalized, the Settlement Agreement will provide a review under the proper standard for all claims that are denied on the basis of the Improvement Standard after January 18, 2011 (the date the Jimmo case was filed).  The determination of whether you have a legitimate basis for appeal and the procedures for appealing your denial go well beyond the limited scope of this answer.   A good resource for learning more about appeals of Medicare denials can be found on the website of the Center for Medicare Advocacy which has published several self-help packets for Medicare appeals.  http://www.medicareadvocacy.org/take-action/self-help-packets-for-medicare-appeals/

James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois
Premium Member of the national ElderCare Matters Alliance, Illinois chapter


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