Jan Neal Law Firm LLC

Alabama Elder and Special Needs Law


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Medicare Improvement Standard

Have you or a loved one been denied Medicare-covered services because you’re “not improving”? Many health care providers are still not aware that Medicare is required to cover skilled nursing and home care even if a patient is not showing improvement. If you are denied coverage based on this outdated standard, you have the right to appeal.

For decades Medicare, skilled nursing facilities, and visiting nurse associations applied the so-called “improvement” standard to determine whether residents were entitled to Medicare coverage of the care. The standard, which is not in Medicare law, only permitted coverage if the skilled treatment was deemed to contribute to improving the patient’s condition, which can be difficult to achieve for many ill seniors.

Three years ago in the case of Jimmo v. Sebelius the Centers for Medicare & Medicaid Services (CMS) agreed to a settlement in which it acknowledged that there’s no legal basis to the “improvement” standard and that both inpatient skilled nursing care and outpatient home care and therapy may be covered under Medicare as long as the treatment helps the patient maintain her current status or simply delays or slows her decline. In other words, as long as the patient benefits from the skilled care, which can include nursing care or physical, occupational, or speech therapy, then the patient is entitled to Medicare coverage.

Medicare will cover up to 100 days of care in a skilled nursing facility following an inpatient hospital stay of at least three days and will cover home-based care indefinitely if the patient is homebound.

Unfortunately, despite the Jimmo settlement, the word hasn’t gotten out entirely to the hospitals, visiting nursing associations, skilled nursing facilities, and insurance intermediaries that actually apply the rules. As a result, the Jimmo plaintiffs and CMS have now agreed to a court-ordered corrective action plan, which includes the following statement:

“The Centers for Medicare & Medicaid Services (CMS) reminds the Medicare community of the Jimmo Settlement Agreement (January 2014), which clarified that the Medicare program covers skilled nursing care and skilled therapy services under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met). Specifically, the JimmoSettlement required manual revisions to restate a “maintenance coverage standard” for both skilled nursing and therapy services under these benefits:

Skilled nursing services would be covered where such skilled nursing services are necessary to maintain the patient’s current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided.

Skilled therapy services are covered when an individualized assessment of the patient’s clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist (“skilled care”) are necessary for the performance of a safe and effective maintenance program. 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.

The Jimmo Settlement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve. The Settlement is consistent with the Medicare program’s regulations governing maintenance nursing and therapy in skilled nursing facilities, home health services, and outpatient therapy (physical, occupational, and speech) and nursing and therapy in inpatient rehabilitation hospitals for beneficiaries who need the level of care that such hospitals provide.”

While this doesn’t change the rights Medicare patients have always had, it should make it somewhat easier to enforce them. If you or a loved one gets denied coverage because the patient is not “improving,” then appeal.

To read the court order implementing the new corrective action plan click here.


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Quarterly Newsletter Available

shutterstock_63936919Our quarterly newsletter, Elder Law Bookmarks, was sent today.  Articles included in the newsletter are:

  • People with Disabilities Can Now Create Their Own Special Needs Trusts
  • Is it Better to Remarry or Just Live Together?
  • Repealing Obamacare Will Have Consequences for Medicare
  • For Better or Worse, States Are Turning to Managed Care for Medicaid Long-Term-Care
  • Make Reviewing Your Estate Plan One of Your New Year’s Resolutions

If you want to be added to the mail list, send an email to neal@janneallaw.com.

 


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Case Study: The Value of Medicare Open Enrollment Plan Comparisons

medical technology concepts illustration designThe importance of Medicare plan comparisons during Open Enrollment are published everywhere you look, but sometimes I think that those warnings go unheeded because folks just do not understand how drastically coverage by the same plan can change year to year.

I saw up close and personal how beneficial the SHIP program is and the importance of Open Enrollment this week.  A gentleman we will call Mr. A came to a State Health Insurance Assistance Program (SHIP) Open Enrollment event in the South Central Alabama Development Commission region.  He drove 20 miles to check out his coverage because he was unsure of whether he needed to keep or change his Medicare Part D prescription drug plan (PDP) for 2017.  He opted to do the safe thing and  check it out.  Thank goodness he did.

Mr. A’s prescription drug plan for 2016 had a zero premium and covered his 10 medications prescribed by his doctor.  That all worked out well, and during 2016 Mr. A’s total out of pocket expenses related to his prescription drug plan totaled $542.00.  This was a manageable arrangement for him.

When a comparison of plans was run Mr. A was shocked to learn that his 2016 prescription drug plan would have a premium of $26.80,  a deductible of $400.00, and his 10 medications had been reconfigured on the plan formulary resulting in 2 of his medications no longer being covered and 3 of his medications reclassified as Tier 3 medications, meaning that his copayments would be higher. In all, Mr. A would have had to pay $3276.00 in out of pocket expenses related to his prescription drug plan during 2017 if he made no changes in coverage.

The comparison provided Mr. A with several options, and he selected a plan that would result in $360.00 in total out of pocket expenses for 2017, saving him $2916.00 over what he would have had to pay if he had not had a comparison run.

While Medicare enrollees can run their own comparisons, they will need to use the online plan finder provided by Medicare.  Comparisons are performed free and counseling provided through the SHIP program funded through the Alabama Aging and Disability Resource Centers.  To learn more call 1-800-AGE-LINE.


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Social Security and Medicare Solvency

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I watched the debate last night and was particularly interested in the segment concerning Social Security and Medicare.  I was disturbed to hear the prophecy of doom posed to the candidates by this question:

WALLACE: “All right. The one last area I want to get into with you in this debate is the fact that the biggest driver of our debt is entitlements, which is 60 percent of all federal spending. Now, the Committee for federal — a Responsible Federal Budget has looked at both of your plans and they say neither of you has a serious plan that is going to solve the fact that Medicare’s going to run out of money in the 2020s, Social Security is going to run out of money in the 2030s, and at that time, recipients are going to take huge cuts in their benefits.

So, in effect, the final question I want to ask you in this regard is — and let me start with you, Mr. Trump, would President Trump make a deal to save Medicare and Social Security that included both tax increases and benefit cuts, in effect, a grand bargain on entitlements?”

Candidate responses and proposals can be found at The New York Times transcript of the debate.

Wanting to know the truth about Social Security and Medicare solvency,  I went looking and found the reports.  The Social Security forecast can be read at the 2016 Annual Report of the Board of Trustees of the Federal Old-Age and Survivors Insurance and Federal Disability Insurance Trust Funds.  And the Medicare forecast can be read at the 2016 Annual Report of the Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Funds.

The best summary of these reports I have read can be found at Forbes who says:

Social Security isn’t running out of money, and it is not going bankrupt, but the program will face a shortfall in 2034.

The Trustees now predict Medicare will exhaust its reserves by 2028, two years sooner than last year’s estimate.

There are manageable solutions to these problems, but action does need to be taken.

The full Forbes article can be read here.

Aging related issues and the relative positions of the presidential candidates can be read at Next Avenue, a web site produced by PBS.


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Medicare Open Enrollment

Caution - Open Enrollment AheadIt is that time of year to reexamine your Medicare coverage to determine if you like what you have or need to make changes.  Medicare’s Open Enrollment Period (OEP), during which you can enroll in or switch plans, runs from October 15 to December 7 every year, so now is the time to review your options to determine if switching plans could save you money and to determine if your coverage will continue to meet your needs.

During this period Medicare eligible people may enroll in a Medicare Part D (prescription drug) plan or, if you currently have a plan, you may change plans. This is an important consideration since each year insurance plans have the option to change which drugs they cover.  What was covered during the immediate past year may no longer be covered.  Also during the seven-week OEP you can return to traditional Medicare (Parts A and B) from a Medicare Advantage (Part C, managed care) plan, enroll in a Medicare Advantage plan, or change from one to a different  Advantage plans. While beneficiaries can go to http://www.medicare.gov or call 1-800-MEDICARE (1-800-633-4227) to make changes in their Medicare prescription drug and health plan coverage, a terrific resource to determine the available options is the State Health Insurance Program operated by local aging and disability resource centers.  Counselors can provide unbiased assistance in helping you maneuver through the maze of options.

Even beneficiaries who were satisfied with their plans in 2016 need to review their choices for 2017. Be sure to carefully review the plan’s “Annual Notice of Change” letter that you should receive. Prescription drug plans can change their premiums, deductibles, the list of drugs they cover, and their plan rules for covered drugs, exceptions, and appeals. Medicare Advantage plans can change their benefit packages, as well as their provider networks.

As an example of how drastically coverage can change year to year, Avalere Health, a consulting and research firm, reports that premiums for the 10 most popular drug plans will rise an average of 4 percent next year. According to the Centers for Medicare and Medicaid Services, the average Medicare Advantage premium is expected to decrease from $32.59 on average in 2016 to $31.40 in 2017.

This is a time when you will see advertisements all over television offering help with open enrollment.  Understand that these companies are advertising to sell you their product.  While their product may be what you want, it might not be, and you should not make a decision about that coverage without knowing all of the options available to you.  Also remember that people who are perpetrators of fraud will inevitably use the open enrollment period to try to gain access to individuals’ personal financial information. Medicare beneficiaries should never give their personal information out to anyone making unsolicited phone calls selling Medicare-related products or services or showing up on their doorstep uninvited. If you think you’ve been a victim of fraud or identity theft, contact Medicare. For more information on Medicare fraud, click here or here.

Some resources to help you navigate open enrollment include:

The 2017 Medicare & You handbook, which all Medicare beneficiaries should have received. The handbook can also be downloaded online at here.

The Medicare Rights Center provides  good educational materials to help.

You can find the State Health Insurance Assistance Program that serves your area here.

The online Medicare Plan Finder can be located here.


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Elder Law Training at OLLI

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On October 10, 2016, Jan taught the first of a two part presentation on Elder Law at  Osher Lifelong Learning Institute (OLLI) at Auburn University entitled Elder Law:  Enhancing the Lives of Seniors Through Education, Planning For What Comes Next.  The second session will be taught on Monday, October 17, 2016, at 2:30 p.m. at The Clarion in Auburn, Alabama.  

Topics covered in this training include:  Older Americans Act Legal Assistance; Important Documents Needed for Proper Planning; Authority Issues; Long-term Care Levels of Care and Payment Options; Medicaid for Long-term Care; Special Needs Planning; Probate; Administration of Estates; Planning for Last Remains and Funerals.

A 39 page Keynote presentation covering these topics is provided to course participants.

Anyone interested in this and the many other learning opportunities available through OLLI can learn more by visiting the OLLI website.


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Health Benefit Retirement Planning

This booklet is a little out of date, but I am posting it here for those who attended the OLLIE Auburn seminar yesterday.