After a Medicare-covered 3 day inpatient hospital stay, beneficiaries in traditional Medicare are eligible for up to 100 days of skilled nursing facility care.  To be covered, the care must be skilled, must be daily, and must, as a practical matter, need to be rendered in an inpatient facility.  The skilled nursing facility (SNF) must be a Medicare certified provider and the beneficiary's physician must certify that the beneficiary needs skilled nursing facility care.   Often care is discontinued prior to the end of the 100 days and before the beneficiary has met her treatment goals.  To prevent this from happening, Medicare beneficiaries and their advocates must understand the Medicare appeals system.

Note that Medicare beneficiaries in private Medicare Advantage Plans have a different set of appeal rights.

Currently, when faced with the discontinuation of skilled nursing facility care, there are two distinct appeal rights that can be exercised:  expedited appeals and standard appeals.  It is important to distinguish between them and to know precisely which right is being exercised.   Medicare beneficiaries have a right to an expedited appeal when Part A covered SNF care is going to be terminated.  Typically in the skilled nursing facility setting, this means that the individual's daily physical therapy is going to end, but it can also mean that the facility staff no longer believes that the rendered nursing care will continue to be daily or skilled.

Expedited Appeals

Two days prior to the end of the covered care, the facility must issue a generic notice indicating that coverage will end.  The beneficiary has until noon of the following calendar day to request an expedited determination.  If the expedited determination is successful, the beneficiary's care will continue.  Keeping care in place is of paramount importance given that meeting treatment goals obviously requires continued treatment.

In response to the beneficiary's request for an expedited appeal, the facility must issue a detailed notice.  The detailed notice should include the following information:  a specific and detailed explanation why services are either no longer reasonable and necessary or are no longer covered; a description of any applicable Medicare coverage rule, instruction, or other Medicare policy, including citations to the applicable Medicare policy rules or information about how the beneficiary may obtain a copy of the Medicare policy; and facts specific to the beneficiary and relevant to the coverage determination that are sufficient to advise the beneficiary of the applicability of the coverage rule or policy to the beneficiary's case.

The expedited determination is made by a Quality Improvement Organization (QIO).  The QIO must issue a determination within 72 hours of receipt of the request for an expedited determination.  The burden of proof rests with the provider to prove that the decision to terminate care is correct.   If the beneficiary is unsatisfied with the QIO's decision, she can request an expedited Reconsideration.  Expedited Reconsiderations are issued by a Qualified Independent Contractor (QIC).  Expedited Reconsiderations must be issued within 72 hours of receipt of the request.  When a beneficiary requests an Expedited Reconsideration in a timely manner (no later than noon of the calendar day following receipt of the QIO decision), the provider cannot bill the beneficiary until the QIC issues its decision.   If the beneficiary does not request an expedited Reconsideration, the provider can bill the beneficiary after she receives the initial expedited decision.

Standard Appeals

Standard appeals for skilled nursing facility care that is initially not paid for by Medicare are also available to Medicare beneficiaries.  When the facility staff decides that it thinks that the continued care is custodial rather than skilled, or that skilled care will no longer be rendered on a daily basis, it must issue an advance beneficiary notice called a SNFABN.  For example, if a beneficiary has been receiving daily skilled wound care, which is covered by Medicare, the day before the wound care is scheduled to end, the facility should issue a SNFABN.

The SNFABN informs the beneficiary that the facility no longer thinks that Medicare will continue to pay for the beneficiary's care and gives the beneficiary the following two options:

r     A.  I do want my bill for services I continue to receive to be submitted to the intermediary [Medicare contractor] for a Medicare decision.

r     B.  I do not want my bill for services I continue to need to be submitted to the intermediary [Medicare contractor] for a Medicare decision.  I understand that I do not have Medicare appeal rights if no bill is submitted.

If the beneficiary checks off the "A" box, she has exercised her right to a "demand bill" and in so doing has initiated the standard appeals process.  However, note that exercising the standard appeal rights does not protect the Medicare beneficiary from financial liability.  If the appeal is not successful, the beneficiary will probably be held financially responsible for the continued care.  Given the cost of skilled nursing facility care, this decision should not be made lightly and without a serious discussion with the beneficiary's physician regarding the merits of the appeal.  That is, does the beneficiary continue to need and receive daily skilled care?  Standard appeals are most likely to be successful when beneficiaries have complicated care needs that require management and evaluation of the care plan or observation and assessment of a changing condition.

After the beneficiary requests a demand bill, the initial decision will be made by a Medicare Contractor and will be a denial of coverage as the provider will have billed the care as non-covered.  The denial will be reflected on the beneficiary's Medicare Summary Notice.  The beneficiary has a right to appeal this decision by requesting a Redetermination. If the Redetermination is not successful, the beneficiary has a right to a Reconsideration.  If the Reconsideration is unsuccessful, the beneficiary can have the case reviewed by an Administrative Law Judge (ALJ).  If the ALJ denies coverage, the beneficiary can appeal the case to the Medicare Appeals Council and if that is unsuccessful, the beneficiary has the right to take the case to District Court.

Per the Medicare Claims Processing Manual, once a beneficiary requests a demand bill, the SNF is prohibited from billing the beneficiary for any items or services at issue until the contractor has determined coverage on the associated claim.  However, as noted above, in the event that the beneficiary also requested an expedited determination, per the regulations regarding expedited appeals, the provider can begin billing after the QIC decision or after the QIO decision if a QIC decision was not requested.

The Medicare regulations state that beneficiaries can only be charged for custodial care or non-daily skilled care rendered in a skilled nursing facility if they have been told in advance that the care will not be paid for by Medicare.  In the event that the Medicare beneficiary is not given notice of non-coverage from the provider prior to the cessation of Medicare covered care, the provider cannot bill the beneficiary for the care in question.  Moreover, the agency that administers Medicare, the Centers for Medicare & Medicaid Services (CMS), has established via policy that it may hold providers liable for rendered care if they have not issued SNFABNs that comply with the policy manual's particular provisions.  Advocates should be familiar with these provisions found in the Medicare Claims Processing Manual, which is easy to access on line at http://www.cms.hhs.gov/Manuals/IOM/list.asp.

Conclusion

The purpose of an expedited determination is to keep care in place.  When faced with the discontinuation of care, Medicare beneficiaries should request an expedited determination.  Standard appeals on the other hand, give beneficiaries the opportunity to have the skilled nursing facility's decision that care will not be covered by Medicare reviewed after the care is rendered.  Beneficiaries who elect this second appeal option should be cognizant of the possibility of financial liability if the appeal is not successful.