As an Elder Law Attorney on Cape Cod, where the elderly population is disproportionately higher than the national average, I see firsthand how the COVID-19 pandemic has been particularly devastating for nursing homes and their residents.
Aside from tragic loss of life, nursing home resident care has been delayed or interrupted due to infection, facility lockdowns or other health system disruptions. In such cases, Medicare beneficiaries who qualified for skilled nursing facility (SNF) coverage may be eligible for an additional 100 days of coverage. Whether all qualified beneficiaries will actually get the extended coverage is another question.
Medicare does not pay for long-term care, just for “medical” care from a doctor or other health care professional or in a hospital. But there’s a partial exception to this rule. Medicare will pay for up to 100 days of care per “spell of illness” in a skilled nursing facility as long as the following two requirements are met:
1. Your move to a skilled nursing facility followed a hospitalization of at least three days, and;
2. You need and will be receiving skilled care.
After the 100 days of coverage ends, a new spell of illness can begin if the patient has not received skilled care, either in an SNF or a hospital, for a period of 60 consecutive days. The patient can remain in the SNF and still qualify as long as he or she does not receive a skilled level of care, but only custodial care, during that 60 days.
Following the declaration of a public health emergency this spring, the federal Centers for Medicare and Medicaid Services (CMS) issued a letter granting a waiver to allow Medicare beneficiaries coverage for an additional 100 days in an SNF, without satisfying the new spell of illness requirement, in certain COVID-19 related circumstances. The letter stated that the policy will apply only to skilled-care beneficiaries whose process of care was interrupted by the public health emergency. (The letter also waived the three-days-in-a-hospital rule in certain cases.)
Six months after that letter, however, there is still confusion about which COVID-19 related circumstances qualify for the waiver. Importantly, according to the Center for Medicare Advocacy, CMS recently confirmed that beneficiaries do not necessarily have to have a COVID-19 diagnosis to qualify for the additional 100 days of coverage. Rather, as described by Skilled Nursing News, “[t]he question is whether the emergency situation interrupted the patient’s path to 60 consecutive days of non-skilled, custodial care.”
In an August 26, 2020, memorandum, CMS attempted to clarify how it would determine whether a disruption in care was related to the public health emergency: “This determination basically involves comparing the course of treatment that the beneficiary has actually received to what would have been furnished absent the emergency. Unless the two are exactly the same, the provider would determine that the treatment has been affected by – and, therefore, is related to – the emergency.”
However, in some cases, nursing homes do not understand how the waiver applies or are not inclined to help patients with a waiver application. The Center for Medicare Advocacy offers a detailed case example of an individual who appears to meet the criteria for additional Medicare coverage but who has encountered multiple barriers in getting it.
In addition to confusion over who qualifies for the extended coverage, the Center for Medicare Advocacy has found that the “waiver that extends SNF benefits by up to 100 days does not appear to afford beneficiaries the same rights as the first 100 days of statutory coverage,” including rights to appeal coverage denials. The Center reports that it “has received an increasing number of requests for guidance on expanded Medicare coverage in skilled nursing facilities.” In response, the organization has compiled self-help materials to assist beneficiaries and their advocates.
The Center is asking those with experiences pursuing coverage under the public health emergency rules, waivers, or guidance to contact it at Communications@MedicareAdvocacy.org