By: Sanford R. Altman, Esq., retired

In the past, Medicare coverage has often been cut off for seniors and the disabled by utilizing the “improvement standard” for eligibility.

Often criticized as unfair, arbitrary and unsupported by law, this policy allowed medical providers to declare a patient was not likely to improve, and Medicare coverage – and treatment – would cease.

Now, the government has abruptly and surprisingly changed its position and reached a settlement in a class-action lawsuit that essentially puts an end to the use of the improvement standard.

What it means

What does this mean to us? Let’s look at what routinely happened before the settlement. For example: An elderly client of mine with mild dementia entered a nursing home for rehabilitation after suffering a stroke which affected his ability to walk. He was to undergo physical therapy and, once he was able to get around, return home.

The family was told that most if not all of the treatment would be covered by Medicare up to 100 days. But here’s the catch: Medicare covers only “skilled nursing care.” This includes, among many other things, physical therapy. It does not cover “custodial care” such as for patients with dementia. While our client should have been covered by Medicare for the full 100 days, coverage would stop if physical therapy stopped before that. And that is exactly what happened.

Is there improvement?

The nursing home made use of the “improvement standard.” The home determined there was no further improvement through the physical therapy and, therefore, it would be terminated. At the same time, since there was no longer skilled nursing for our client, Medicare payments ceased as well. This meant that either our client would have to go home without being fully recovered or would have to stay in the nursing home and private pay approximately $400 per day.

While we were able to obtain Medicaid coverage for our client to cover his fees, the nursing home’s invoking the improvement standard prevented further physical therapy, his condition deteriorated and he never could return home. This has been the typical, heartbreaking reality under the government rules.

A brighter future

The future now looks brighter for Medicare recipients, thanks to the excellent work of the not-for-profit Center for Medicare Advocacy. The group led a class-action lawsuit against the federal government to end the improvement standard. The government has agreed to a settlement in which the improvement standard will be replaced by one where Medicare services will continue in order to “maintain the patient’s current condition or prevent or slow further deterioration.”

As a result, more nursing home residents will get to return home to their loved ones. Coverage for those receiving care at home is now seen as potentially extending indefinitely, a great boon for both patient and caregivers.

Some time to modify rules

The settlement gives the government a healthy period of time to modify its rules and “conduct an education campaign” for those involved in Medicare and the treatment process.

In the meantime, patients and their advocates must be proactive. If you hear the phrase, “We will be stopping treatment because you have plateaued,” or, “We expect no further improvement,” speak up. Tell them you want treatment to continue for you or for your loved one to prevent further deterioration. Likewise, care providers should take it upon themselves to confirm they can use the new standard without waiting for the slow-moving government procedures. When we are talking about the health of our seniors and our disabled, you simply cannot afford to wait.

This article was originally published in the Times Herald Record on November 22, 2012.