62 health s The QUEE NS Courier • health • FEBRUARY 7, 2013 for breaking news visit www.queenscourier.com The Elder Law Minute TM Judge Approves Medicare Settlement Eliminating “Improvement Standard” By Ronald Fatoullah, Esq. and Stacey Meshnick, Esq. Seniors and individuals with chronic conditions are helped by rehabilitation and other skilled services covered by Medicare. These services include home health care, skilled nursing home stays and outpatient therapy. However, Medicare has typically discontinued coverage when improvement cannot be verified, negatively impacting the lives of many beneficiaries who may have conditions such as stroke, multiple sclerosis, arthritis, ALS, and other chronic conditions. While many disabled people may not improve, therapy often delays further deterioration and maintains elder law quality of life For about 30 years, nursing homes and home health agencies that contract with Medicare have routinely terminated the Medicare coverage of a beneficiary who has stopped improving, even though nothing in the Medicare statute or its regulations says that improvement is required for continued skilled care. Once beneficiaries failed to show progress, contractors claimed they could deliver only “custodial care,” which Medicare does not cover. As a result of the negative impact of this “improvement standard”, the Center for Medicare Advocacy and Vermont Legal Aid filed a class action lawsuit, Jimmo v. Sebelius, against the Obama administration in federal court aimed at ending the government’s use of the improvement standard. The class action included plaintiffs who were denied coverage by Medicare for services such as wound care, physical therapy, and home health visits. After the court refused the government’s request to dismiss the case, and the administration lost in similar individual cases in Pennsylvania and Vermont, it decided to settle. The settlement was approved. Under the terms of the settlement, Medicare will now pay for services if they are needed to “maintain the patient’s current condition or prevent or slow further deterioration,” regardless of whether the patient’s condition Att: Dr. Irina Shamalava Fax: In The Index: Dentists Diad: #D4301008A is expected to improve. Relevant portions of the Medicare manual will be revised and will clarify that skilled nursing facility, home health and outpatient coverage of therapy “does not turn on the presence or absence of a beneficiary’s potential for improvement from the therapy, but rather on the beneficiary’s need for skilled care.” In addition, changes will reflect that an inpatient rehabilitation facility claim cannot be denied because a patient could not be expected to achieve complete independence in the domain of self-care or could not be expected to return to his or her prior level of functioning. The court will certify a class of over 10,000 Medicare beneficiaries who had claims that were denied before the filing of the lawsuit on January 18, 2011. Regarding notice to beneficiaries, Judith Stein, Executive Director of the Center for Medicare Advocacy, said “we want to get the word out that Medicare should be available if they need skilled care to maintain their condition.” Stein could not say whether most of the denials are for patients in nursing homes or home care recipients or how many Medicare beneficiaries might be ultimately affected by the change… perhaps tens of thousands, perhaps hundreds of thousands. She said that Medicare’s regular cap on the duration of coverage for a skilled nursing stay (100 days) and the cap on therapy (typically $1,800), will remain in place, although she noted that beneficiaries can go beyond the therapy cap by requesting an exception. It is unclear to what extent the policy change will increase Medicare coverage for dementia sufferers who could benefit from skilled care. Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that exclusively concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn, and Cedarhurst, NY. This article was co-written by Stacey Meshnick, Esq., senior staff attorney at the firm who has chaired the firm’s Medicaid department for over 15 years. Ronald Fatoullah & Associates can be reached by calling (718) 261-1700, 516- 466-4422, or toll free at 1-877-ELDERLAW or 1-877-ESTATES. 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