Your spouse has been recovering from a broken hip at a skilled nursing facility and received a 48-hour notice that his Medicare nursing home coverage is ending. You thought he had up to 100 days of coverage per benefit period. It’s only been 21 days, and your spouse still needs more care. Is there anything you can do? The good news is yes, there is. You can appeal to Medicare to request that your spouse’s skilled nursing facility stay and coverage continue. If you have questions about this appeal process, contact one of our estate planning lawyers to assist you.
Valid Written Notice Requirements
According to the Centers for Medicare and Medicaid Services: "(b]before any termination of services, the provider of the service must deliver a valid written notice to the beneficiary of the provider's decision to terminate services." 42 CFR 405.1200 (b).
Why is a valid written notice so important? A valid written notice must explain why the nursing home believes Medicare payment is no longer warranted, when and where to file an appeal and the appeal rights.
Remember that the notice must contain all of the information required for it to be valid, and it must be delivered at least two days before the proposed Medicare cutoff date. The nursing home is responsible for continuing care until a valid written notice is received.
How to Get a Fast Appeal
Since your spouse has received a valid written notice, how does he make a fast appeal since time is of the essence? On the Notice of Medicare Non-Coverage (NOMNC) your spouse received, you'll find information about how your spouse can request a fast appeal by contacting the Beneficiary and Family Centered Care-Quality Improvement Organization (QIO) at the number given on the NOMNC. File the appeal no later than noon of the day before services end.
The QIO will notify your spouse's provider of the appeal and gather the information required to review the case. When the provider learns of the appeal, they should provide your spouse with a Detailed Explanation of Non-Coverage, which explains his nursing facility care termination. This notice will also include any Medicare coverage rules that apply to his situation.
In addition to the information provided by the provider for your spouse's appeal, you and he may submit your evidence to support his need for continued skilled nursing facility care—though this is not required.
Following the submission of evidence, your spouse may speak with the QIO again by phone or submit a written statement explaining the need for continued care. Based on the information provided by the skilled nursing facility and your spouse, the QIO will determine whether Medicare will continue to cover your spouse’s care. The QIO must make a decision for your spouse no later than two days after his Notice of Medicare Non-Coverage indicates that his care is about to end. This decision can be made over the phone, but it must also be in writing.
If the QIO decides that your spouse's care should be continued, he should continue to receive care as long as his provider certifies it.
Disagree With the QIO Decision?
If the QIO denies your spouse's appeal, he has the option of proceeding to the next level by appealing to the Qualified Independent Contractor (QIC) by noon on the day following the QIO's decision. Within 72 hours, the QIC should make a decision. Until the QIC makes a decision, your spouse's provider cannot bill him for continuing care. If your spouse loses his appeal, he will be responsible for all costs, including those incurred during the QIC's 72-hour deliberation period.
If your spouse fails to meet the QIC deadline, he has 180 days to file a standard appeal with the QIC. The QIC should make a decision within 60 days. If his appeal to the QIC is successful, he should be able to continue receiving Medicare-covered care as long as his doctor certifies it.
Office of Medicare Hearings and Appeals
If your spouse's QIC appeal is denied and his care is worth at least $180 in 2021, he has 60 days from the date on his QIC denial letter to file an appeal with the Office of Medicare Hearings and Appeals (OMHA). The OMHA oversees the nationwide Administrative Law Judge (ALJ) hearing program for appeals arising from individual Medicare coverage claims. The ALJ will be handling the appeal. If your spouse decides to appeal to the OMHA level, he may wish to consult with an elder law attorney to assist him with this or later steps in his appeal. Your spouse should receive a decision from OHMA within 90 days.
If your spouse's appeal to the OMHA level is successful, he should be able to continue receiving Medicare-covered care as long as his doctor certifies it. If his appeal is denied, he can proceed to the next level by filing an appeal with the Medicare Appeals Council (Council) within 60 days of receiving his OMHA level denial letter. The Council has no deadline to make a decision.
If his appeal to the Council is successful, he should be able to continue receiving Medicare-covered care as long as his doctor certifies it. If his appeal is denied and he is appealing care worth at least $1,760 in 2021, he has 60 days from the date on the Council denial letter to file an appeal with the Federal District Court. There is no deadline for the Federal District Court to rule.
Medicare vs. Medicaid
As we discussed in a recent blog, Reasons You Need An Attorney for Medicaid and Long-Term Care Planning, something to keep in mind is that Medicare only pays for short-term care for things we expect to recover from, such as rehab after a hip fracture, but Medicare does not pay for long-term nursing home care, leaving Medicaid as the primary government assistance program available. If it appears that your spouse will require long-term care, you may consider applying for Medicaid financial assistance; however, the Medicaid program was designed for those with few to no assets. Working with an estate planning attorney can help you determine your next steps and if applying for Medicaid is your best option.
Contact Carolina Family Estate Planning in Cary
We know how hard it is to figure out the Medicare appeal process and whether or not it is time to apply for Medicaid, especially when time is of the essence. We work hard on behalf of our clients to ensure you get the peace of mind that comes with knowing you’ve got an ally and a resource if you or a loved one needs assistance developing a Medicaid strategy. No matter what questions you have, take advantage of the opportunity to speak with an experienced and dedicated elder law attorney today. Schedule a needs assessment call with our experienced, caring, and dedicated legal team at Carolina Family Estate Planning at 919-443-3035 or complete our online form.
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