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Legal Notes: Medicare Coverage of Skilled Care

Attorney Seunghee Cha; Bulkley, Richardson and Gelinas, LLP; Hadley, MA; 413-256-0002Attorney Seunghee ChaMedicare turned fifty-five years old this year. The national health insurance program, which covers Social Security recipients 65 years old or older and certain individuals with permanent disability, among others, is credited for playing a significant role in reducing poverty. Over the years, the program has expanded to include benefits such as home health care, durable medical equipment, and hospice.

Health care providers tend to misconstrue the law, believing that improvement is a requirement for coverage for skilled care.

Among Medicare’s benefits is skilled care for nursing home care, outpatient therapies, and home health care. The rules governing coverage vary depending on the care setting. For example, skilled care under Part A requires at least 3 days of inpatient hospitalization and a maximum coverage of 100 days in a benefit period. Skilled care as part of home health services under Part B is available to people who are homebound, without the institutional requirement or a 100-day limit.

Skilled care is nursing and physical, occupational, and speech-language therapy services that can only be performed safely and effectively by or under the supervision of professionals to treat, manage, observe, and evaluate a patient’s conditions and care. (Skilled care should not be confused with custodial care in nursing homes for room and board and assistance with activities of daily living—Medicare does not cover custodial care.) 

Under Medicare law, skilled nursing or therapy is provided to patients to improve their condition, maintain current capabilities, or prevent further deterioration. Unfortunately, beneficiaries, particularly those with longer-term or chronic conditions, are often denied skilled care because they are not improving. Health care providers tend to misconstrue the law, believing that improvement is a requirement for coverage for skilled care.  

Due to the widespread, wrongful denial of skilled care around the country, in 2011 Medicare advocates filed a class action lawsuit against the Centers for Medicare & Medicaid Services (CMS). The case, Jimmo v. Sebelius, was settled in 2013; as part of the settlement CMS issued a clarification of the law that skilled care coverage includes services to maintain a beneficiary’s current capabilities and to prevent further decline even if the beneficiary does not improve. CMS was also required to conduct an educational campaign to Medicare providers and adjudicators. 

Several years after the Jimmo settlement, Medicare beneficiaries still face denial of medically necessary skilled care. The application of the erroneous improvement standard persists, according to a recent national survey of Medicare providers and adjudicators.

If you receive Medicare, or you are an advocate for a Medicare beneficiary, you need to know the right to medically necessary skilled care. These services are crucial to helping people reduce their risk of falls and hospitalization, maintain activities of daily living, regain independence, or effectively adjust to new levels of self-care.