The Dreaded Plateau

Medicare does not cover care in a “nursing home,” but it does cover up to 100 days of “skilled care” or rehabilitation. Getting the full 100 days of rehabilitation can be a problem because skilled nursing facilities, or SNFs, will issue a Notice of Medicare Skilled Care Termination as soon as there is any doubt that the patient needs skilled care. Often the reason given is that the patient has reached a “plateau” in his or her progress. That is not a valid reason for termination, so it is important to appeal the notice. An experienced Elder Law attorney can help the patient get all of the rehabilitation days covered by Medicare.

Rehabilitation is extremely important after a hospitalization. Even a few days as an inpatient can weaken a person who is aged or has a disability. Getting as many days of rehabilitation as possible should be a major goal for the patient and the patient’s family. The problem from the SNF’s point of view is that if skilled care is provided and Medicare later decides that the patient was not eligible, the SNF cannot look to the patient or the patient’s family for payment unless it issued a Notice of Termination. Therefore, the SNF will always issue the notice if there is any doubt that the patient is eligible. As a result, approximately 90% of appeals are upheld by Medicare. Appeals for Medicare Advantage enrollees are more complicated, but my experience has been that they are also usually successful.

Appealing in most cases is very simple–just call the number on the back of the notice by noon of the day before the termination. The SNF must give notice at least two days before the termination date. If the patient or the patient’s representative does not have two days advance written notice, the SNF must continue to provide skilled care until the date of termination following proper notice.

SNFs often give improper notice. In some cases, they tell the family over the telephone or at the facility that skilled care is terminating, or give written notice too late or with wrong information. In these cases, skilled care must not be terminated.

The office that handles the appeal is called a Quality Improvement Organization (QIO) or Peer Review Organization (PRO). The QIOs and PROs are very responsive, at least in Michigan and Pennsylvania.

One client received notice by regular mail on a Saturday that her husband’s skilled care was being terminated that day. We called the QIO that evening and left the husband’s name, his Medicare claim number, and the name of the facility. We also explained that she had received notice on the day of the termination. The next morning, Sunday, my client received a call from the QIO telling her that the SNF had been informed that it had not provided proper notice and must continue providing skilled care to the patient. My client was pleasantly surprised that the QIO provided service on the weekend.

That should have been the end of the matter, but it was not. The next Tuesday, the same client received a certified letter from the SNF informing her that her husband’s skilled care would be terminated that same day. Once again, we called the QIO and went through the routine. The QIO informed the SNF that it had not provided proper notice and must continue to provide skilled care to the patient. One would think that two strikes would be sufficient to clue the SNF in to the requirements. Not so.

On the following Saturday, my client had to sign for a Notice of Termination delivered by FedEx. It informed her that her husband’s skilled care would be terminated the same day! They still had not figured out that silly old two-day thing.

Getting the full 100 days of skilled care is often as simple as making a phone call to the QIO if the SNF gives the patient a notice of Medicare Termination. However, there are many aspects to appealing that make a consultation with an Elder Law attorney a good idea. For example, the family may be liable for the cost of skilled care at $500 per day or more if the appeal is not successful. The appeals are generally upheld or denied within 72 hours, but occasionally they take several weeks. If you or a loved one receives a notice that skilled care is being terminated, there are serious legal ramifications. It is worth the cost of a consultation to ensure that the patient is getting the benefits he or she is due.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2010 John B. Payne, Attorney

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