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A family member just went into rehab for a fall after hospitalization. The facility informed me that if there was no improvement in her physical capability, say being able to walk again, that she would be discharged since that is the medicare requirement. There has to be continual improvement. But the way I understand it, there is no progress standard. That standard was applied for years incorrectly. If you look at the actual law that governs Medicare, it clearly states that the criteria is to prevent further deterioration, not improvement. Due to the Jimmo lawsuit settlement, Medicare agreed to inform people of this fact. Right in the revised Medicare manual, it says.


"No “Improvement Standard” is to be applied in determining Medicare coverage for maintenance claims that require skilled care."


Here's the underlying law.


"(c) The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities."


Does anyone have any insight into this? What the SNF is telling me seems to be at odds with what Medicare says. How should I handle this? Should I ask them for clarification now or should I wait until, or if, they try to discharge due to no improvement?

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doctorno: This post is from June of last year.
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Senior Policy Attorney
Center for Medicare Advocacy
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For the record, I responded to this query because the writer asked for insight. Apparently, my insight is not considered "correct" despite my experience with this area not for one parent but two. I am sorry that you aren't open to hearing what was the truth in my experience. And by the way, I did read the links that you provided and am familiar with the Jimmo settlement. Before the Jimmo settlement, patients in long-term care did not receive physical therapy. Fortunately, the Jimmo settlement made quality of life better for them. John Roberts answer is good, especially in that he recommends advocating for your loved one with the physical and occupational therapists and physician at the rehab facility before discharge occurs. That means communicating well (including listening) and demonstrating respect instead of anger.
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Years after a Federal Court tried to end this misunderstanding about Medicare coverage, the Center for Medicare Advocacy says it "still regularly hears from beneficiaries facing erroneous 'Improvement Standard' denials in home health, skilled nursing facility, and outpatient therapy settings."

The Center encourages Medicare beneficiaries and their families to appeal unfair “Improvement Standard” denials, even though Medicare patients "and their families should not be in a position of having to educate providers, contractors, and adjudicators about Medicare policy."

They advise patients "and their families to continue citing to the Jimmo Settlement and related materials when challenging denials."

But the most effective way to avoid the need to fight a Medicare appeals (which is not likely to succeed) is to engage the physicians and caseworkers before the time they must make a decision to terminate their Medicare billing.

A Geriatric Care Manager or Advocate who understands the patient's needs, the medical providers, and their billing practices, gives you the best chance to gather the facts needed to continue care paid by Medicare. Hire the advocate as soon as the patient is in the hospital, before being discharged to a facility, and you give yourself the best chance to better results.

These professional Advocates are privately paid by the patient. But the cost is worth the benefit of having an objective advocate working alongside you and your family.

https://www.medicareadvocacy.org/jimmo-implementation-update-where-is-cms/

https://www.rd.com/health/conditions/save-money-fighting-hidden-hospital-policy/
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Nelsonj63 Oct 2019
Hi John,

My family received notice from my moms rehab / SNF that they are releasing her before they have completed the therapy as prescribed by her orthopedist . They were initially verbally telling us it was because she had plateaued and was not showing improvement . We appealed and their QIQ declined the appeal . Their stated reason is there is no longer a need for skilled nursing care and she could move to a lower level of care.

Our mother is 88 and was living independently until she had a fall and broke both ankles. The doc did surgery and put in plates and screws . He prescribed intense PT and OT , but non weight bearing . Since the last visit , he added range of motion to begin working to resolve her plantar flexion in both feet . This therapy was to continue daily at least until next doc appt .

Given the docs orders and my mother’s current state, we don’t understand how any rational person can suddenly declare she no longer has a need for this therapy. Jimmo clearly says that “need” is the main criteria for continued coverage , so they have now moved away from arguing that she has plateaued and now saying she no longer needs it, so they shifted their game to hit on the correct term. But the fact remains that she very much does need it, especially now . Otherwise she will regress and be relegated to a state of total dependency .

Your advice and tips in this situation would be appreciated .

Thank You
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When it all comes down to it, if Medicare won't pay then the NH has to release the patient. Your fight is with Medicare not the rehab. They report to Medicare and Medicare determines if the person needs to continue therapy.

Plus, your are not guaranteed 100 days. Thats just how long Medicare will pays.
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needtowashhair: I do realize that my late mother's situation differed from your's. However, I just wanted to share what SNFs can do - be a bit " shady." My brother and I expected our mother to move from the rehab unit of the NH to the long-term care unit of the same NH as she was failing at living alone in her own home many thousands of miles from my brother and I. They pulled a fast one on us when they had a family meeting with mother in attendence and said to her " Ma-am, you're too well to stay here." Ahh - excuse me?!?!?! As I said my mother had a cerebrovascular accident, aka, stroke less than 48 hours later. While at the hospital, the NH called me asking " Do you want to do a bed hold?" Really?! That would have equated to $410 per day! I knew a woman who successfully went from the rehab unit to the long-term unit of this same NH so I knew about this option. But my sweet mom passed away. Insert - my brother is an attorney and we probably could have had a post mortem lawsuit.
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As I understand it you have a loved one in rehab that isn't progressing well enough to continue rehab. The restoration or restorative physical therapy rule that you cited is for a person receiving long-term care. In other words, medicare must pay for a person to receive physical therapy in long-term care in order for them to maintain strength. Without it they would surely worsen, especially since many long-term care facilities like their patients in wheelchairs instead of walking. What you need to do is to appeal the Medicare decision to discharge. Expect them to decline your appeal and then appeal their appeal. With that second appeal, you might have a chance to extend your loved one's time in rehab in order to determine whether they are able to return home to live independently. If you lose the second appeal, your loved one will have to pay for the extra days out of pocket. What you may not understand is that when someone is in a nursing home receiving long-term care, they may have an illness, surgery, or injury that will qualify them for rehab physical therapy. Once they "plateau", then they switch to restorative physical therapy. All of these therapy hours are paid by Medicare. It is possible to switch back and forth while in long-term care which is not rehab. If your loved one can't get Medicare to agree to additional time in rehab, then, they will need assistance in the home including Medicare physical therapists who do home visits or long-term care in a nursing home. I will add that sometimes, long-term care can work by allowing a more gradual recovery if the patient is capable with a discharge in a few months. Although not common, it can be done. In my opinion, the Medicare policies protects their bottom line in this all-to-common scenario. Of course, someone older who might have other health issues or sensitivities to therapies need a kinder more gradual rehab, but that would be expensive for Medicare. Far better to push the cost onto a different entity such as the patient's savings or Medicaid. I feel that this arrangement makes for a very stressful situation for the patient and their loved ones and doesn't really treat the patient with the respect and humanity they deserve. I speak from experience. Good luck in navigating this.
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needtowashhair Jun 2019
No. That's completely wrong. I wish people would at least try to read the links to I've posted. The Jimmo settlement was specifically about the 100 day rehab period after hospitalization. It is not about long term care.

THERE IS NO PLATEAU, RESTORATIVE PHYSICAL THERAPY OR NO PROGRESS RULE PERIOD.

Whether it's short term, long term, whatever term. I don't understand how that came into the mindset of so many people. I've actually read the underlying law governing this aspect of medicare. Even there, the bottom line is to prevent deterioration. Period. Full stop.

Please try to read the links I've posted. In Medicare's own FAQ about there not being a no progress rule, they even mention the 100 day short term period.
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I wouldn't go for the discharge. My late mother was in an SNF, but even way before the 100 days came they had a meeting and told her and us that she was too well to stay there. WRONG ANSWER! Less than 48 hours after that statement. she had a stroke there. She did not survive.
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needtowashhair Jun 2019
That's the point of this thread. Nothing has happened yet but during admission they warned me about the "no improvement" rule and they blamed it on Medicare. There's no such rule from Medicare.

It seems it's a common widespread misconception. Which I guess was the point of the Jimmo settlement. Medicare agreed to educate people that it wasn't a thing. I guess we have a long way to go.

I'm really curious how it ever even became a thing. It's like it popped out of nowhere and people just went with it even though it has no basis in federal law or medicare policy. How do these things happen?
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You do realize that the 100 days only means what Medicare will pay up to. Only 20days do they pay 100%. 21 to 100, 50%. Hopefully supplimental will pick up some of it but the patient pays about $150/$160 a day. Thats a total of 12k that the patient pays Out of Pocket. Patients hit a plateau where they can do no better than they r doing. At that time Medicare has them released. They don't cover maintainance in a rehab setting. Mom got some therapy at her AL and some at her LTC. If you feel ur LO would benefit with homecare therapy, request it. I think it may last only so many days, stop, and then Medicare pays again so many days later. Medicare is not going to pay for the high cost of a rehab stay if the person is not progressing or refuses the therapy.
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needtowashhair Jun 2019
Once again, that's completely not true. There is no "plateau" criteria for discharge. The bottom line criteria is to reduce deterioration. It's not medicare that stops paying. It's the facility that stops billing. Medicare has a section of their website devoted to explaining this. Here's a link to it again.

"Q7: Can a patient change from an improvement course of care to a maintenance course of care, and vice versa?

A7: Yes."

"Such a maintenance program to maintain the patient's current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program."

https://www.cms.gov/Center/Special-Topic/Jimmo-Center.html
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They determine what they want to imo. My mother was in rehab after a broken hip, she has dementia so still under the influence of the anesthesia and medication. She progressed to using a walker in three weeks but they didn’t want her to do so alone so after 3 weeks booted her out claiming not responding/ improving. She had OT and PT still, progressed to walker and now seriously walks faster than me without it( the ALF wants her to use it due to a fall risk) . I think it’s application is at the whim of the facility.
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needtowashhair Jun 2019
That's what the insurance company told us too. I was just asking them if there was coverage once discharged from rehab. They told me to move to another facility if discharged from the first and the 100 days would continue. I thought they were crazy. They aren't. I talked to Medicare. They advised me if discharged for "no improvement" to appeal.
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You need to go online and look up the "Jimmo Toolkit for Skilled Nursing". Jimmo was a lawsuit that addressed this issue, a residents right to continue to get therapy even if they are not meeting the "improvement" standard. This toolkit goes in to all the requirement needed to continue therapy, basically you have to show that the resident needs "skilled care" on a daily basis.
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You will probably hear the words, she is at a plateau. She started as being unable to walk. Each week she walked a few more steps and now walks the same number of steps each day. Some of that 'plateau' has more to do with time allotted to her by the therapists. The notes will also mention she goes to therapy 3 hours every day. This is where you can step in and keep very detailed notes to argue your case to keep her a little longer.

While notes say she's exercising 3 hours, that's really not logical. People without injury seldom exercise 3 hrs a day. She may be in the PT room for three hours, but by observation you can note what she did on each machine and for how long. Ten minutes on leg machine. Fifteen minutes doing various arm exercises. Sat off to the side for an hour while other patients took their turn.

As for walking, how many steps did they tell her to walk today, tomorrow, the next day. Were they asking for more each day or were they creating the plateau by only asking for the same amount? Pay attention to the patient, is she calling it quits or just needs a rest before doing more steps. (Patient creates plateau when they refuse/want to return to room). If it is the facility doing same things every day without trying to do a little more (and patient has not refused) then speak up. Mom - after you take a little break, let's see if you can do two more steps....then 4 more steps...etc. Then state the improvement so PT people put in the notes.

Go to her house and take her size of steps to all of the rooms she walked to so you have an idea of how many steps she did each day and how often. That will be YOUR goal for her. The facility goal and your goal are two different things.

If they slapped a diaper on her as soon as she got there (common so that staff don't have to get in any hurry to help someone go to the bathroom), that is another goal you want while there. When you're in the room with her, call them for bathroom assistance...meaning they assist her to walk there, get on the pot, wipe and get off - goal being she can do it with someone only standing by for a while to catch her if she gets unsteady. When you push the button, note the response time. You'll find that many times it can be much longer than a young bladder can hold it - 30 minutes, an hour, no response at all. Those things you report to director of nursing or the administrator when you have several long delays in getting help. Going home in a diaper, when she did not wear one before, is not my idea of a plateau. You also have to remember the longer your brain says it's ok to pee in your pants, the longer it will be to reverse that thought. If it goes on long enough, you won't reverse it. The facilities do have what is known as toilet/bladder training.

Bottom line is someone has to be there most of the day, every day, to know for sure what is going on. Get a notebook and keep a diary. Otherwise, what they say goes because you will have no proof.
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I had to appeal three times when my mom's SNF repeatedly set discharge dates,but I was prepared with medical records and letters from other doctors.
They set a date a week into her being admitted.She had a stroke after a bilateral mastectomy,and lost mobility on her left side.She lost the use of her hand and ability to walk independently.She needed PT and OT.I wasn't going to be bullied ,and a fought for my mom everytime.The DOR approached me after my third appeal, and admitted he had acted prematurely ,and if I stopped appealing he'd be more mindful before setting another discharge date.Needless to say my mom was admitted in Oct 2015 and wasn't discharged until Jan of 2016.

Fight for what is right and just.
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It is a legal jungle, and I surely am no expert. There are levels and code words, and code numbers, and etc. Needing SNF (SKILLED nursing faciliity) can be different than needing "REHABILITATION". The places usually work to get the best coding they can, but they have to submit papers from doctors and therapists that prove what they are doing is "worth the cost to the system" and will have further results. So for instance, a skilled nursing facility is there to see that there is no further deterioration, to get people up and moving and well fed so there are no decubiti, and so on. Whereas REHAB is there to improve someone. In rehab, when a level is met that therapists feel the patient is not moving beyond and will not improve beyond they must say so. Sometimes the facilities can fudge things a big if they try. Say a patient who fell and is in for rehab and balance and gait training can be said to need further "wound care" for a dressing change and so on for another few days coverage. Saying that all of this varies means naturally that it it varies state to state and city to city and facility to facility and therapist to therapist and doctor to doctor, and just means in truth it is a hopeless tangle. Beg. Do the best you can to get the time you need, your loved one needs. An adversarial relationship in this instance will get no one anywhere. I got a book on medicare and if you want to talk confusion, I challenge anyone to get through it with less confusion than they entered it. I tossed it.
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I was just discharged after 100 day medicare paid SNF stay. And I worked hard in PT to keep improving..

Just to know, my father's recent snf admission was contolled by his Medicare Part C plan insurer, not Medicare. They granted a brief continued stay and then discharged to family paid board and care (assisted living) facility. He was evaluated weekly or for a shorter period . We were told on Easter Friday at 3 PM that he needed to be discharged on Tuesday. We got a short appeal and he was able to stay about 10 days more.

Also be careful of Part C Medicare advantage plans. My father's union said the benefit was no annual deductible of $300. His losses??? Limited OT and PT benefits in SNF. Only 3 per week were authorized. The usual is 5 under original Medicare. The facility appealed and got 5 treatments per week. And a rushed discharged. So be careful of the plan you choose.
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My step-mom is in Arizona and the home-care physical therapy always stoped when she reached a plateau. But all I had to do was call and report a “new” issue and the PT would start up again. Seems that the care team has to follow the non-improvement rule but they are happy to cycle through it as often as needed.
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Oh my I wished I had read this about a year and a half ago. My mother was in a nursing home with Dementia. She walked all over the place, had a sense of humor but some days she was a bit quiet. On day I get a call saying she had fallen they 'guess' because nobody saw what happened, when they found her she was in the floor and complaining of being in a lot of pain, so she's at the ER.' I go up there and relay the story that the nursing home had reported to me. They just went along with me but did a CT scan. The Dr. come out and said it was much worse that what they were expecting which was a fractured hip but could easily be fixed here at this smaller hospital. But the whole end of her hip was broken off and was in the wrong area and she had internal bleeding and needed to be sent out to the UT Trauma Unit priority one. They questioned me about 'the fall' and said it was strange that much damage was done and the fact she only weighed 116 pounds just didn't make sense. So she ended up with a metal plate, and 8 screws and two fractures in the pubic region and a fracture in the hipbone itself on the plateau I guess maybe that's what you would call it. I found out later that I was lied to and that another resident decided to slam dunk my mother because she touched something that belonged to the other resident.. They saw what happened but they are so understaffed they could not even defused the situated before it got to that point. So she is on total bedrest for nearly 8 weeks, no wt. bearing on either leg. Tell a 82 year old that loves to move around and walk that she has to stay in bed. To top it off she has RLS really bad and would cry out for help but the dr. refused to do anything for her so I just made up lavender essential oil in a lotion base and try to help her by rubbing her legs in that stuff. Anyway after the time is up and they can start with her PT more than sitting on the side of the bed for 10 minutes. She was doing good. They put her on the pedal thing and she would sit in the chair and just pedal away. They were walking her with a walker and couldn't get her to sit down unless they would run her to a door then put the wheel chair up to the back of her legs and then she would sit down. Then I was told her 100 days were up and she was pretty much as good as she was going to ever get and if she had any more then I would have to pay for it and I'm disabled with SLE and CKD so there was no way. Now that I can see the whole picture, she started declining, she was put more in the bed in the day time, she was in a wheel chair. If she tried to get up and walk, they discouraged her because they were short of help and couldn't watch her, so they would take her pants off and put her in the bed. As this past year went she just kept going downhill. Was admitted to the hospital with a GI bleed 6 months later......I found out she had a GFR in the 30's June2018 and I was NEVER told she had chronic kidney disease stage three. I'm also at that point and I know what you are suppose to eat and what you are never suppose to eat or drink. The following January (6 mo ago) she was sent to the hospital extremely sick, So extreme she was Septic, hypovolemic (I had complained they had no water in her room and I wanted to give her some. I would tell them on my way out and asked them would they please see to it and they assured me. Well as we see she was so deprived of water she went into shock, he urine looked like blood when they cathed her. She had an impaction *huge...like 5 inches across* She suffered from severe mal nutrition. When she went into the home she was about 148 lbs. she lost down to 98 at first and I was so upset when I found out they said well sometimes she eats and sometimes she doesn't!!!!! Oh and her blood pressure was 60/32 on admission and she had been given bp meds without checking the bp except once a month...maybe. Needless to say she died a week later. if only I knew.
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maryqesq1 Jun 2019
I hope you have reported facility to state licensing, sought legal advise for malpractice issues against facility, and reported elder abuse to local adult services.
This wasn't a trivial incident. You need to take action. Nothing about this was reasonable or ordinary.
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Can this happen to an Out patient rehab. My mother went 2 times a week. All of the sudden she stopped going. She missed several appointments and was not doing the exercises at home. She won't say anything more then she's not going any more.
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Aviva93 Jun 2019
Sounded like she just didn't want to do the exercises, maybe it was uncomfortable for her or she just didn't feel like it was doing her any good. I know my Insurance paid for two full weeks of PT in the medical facility then they did in my home when I was discharged, then I drove to one twice a week. When it was over I asked if they would see if I could get more therapy and they did, but idk if it was over the 100 days. I know that Medicare will pay 100 days a year each year, but they would have to like go into the hospital then come back to the nursing home for it to pay. They just don't volunteer to pay out of the blue.
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My father and I just experienced this situation- the rehab. facility wanted to discharge due to lack of progress. My father appealed to Medicare and Medicare supported him to stay in the facility. In fact, Medicare stated that my father was making progress and it was medically necessary for him stay. This happened a second time and Dad stated that he would appeal again- interestingly, the facility allowed him to stay another week until he felt safe to leave rehab. Don't be afraid to appeal!
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Thank you all for these insights! My Mom is in this position right now! She is 89 and broke her hip! These answers are very helpful!
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There IS a progress standard for Medicare. When my DH was receiving Physical Therapy, it was all explained to me and they worked very hard to see that DH did show improvement. Thankfully because we found DH could do more than he thought he could and way more than I thought he could.

Maybe it varies from state-to-state? But in Mississippi, they were very helpful in explaining to me how DH had to show improvement.
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needtowashhair Jun 2019
No. There is not. Period. Full stop.

I already quoted the CMS manual explicitly saying there is no such standard.

Here is a quote directly off the Jimmo section of the CMS website.

"The Jimmo Settlement Agreement may reflect a change in practice for those providers, adjudicators, and contractors who may have ERRONEOUSLY believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve."

https://www.cms.gov/Center/Special-Topic/Jimmo-Center.html

I capitalized the keyword in. There is no such progress standard. Doesn't exist for medicare.
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This is interesting and I'll need to research more on Jimmo, however I am currently facing the same possible determination re: in-home care and therapy. Basically, once a patient begins to perform at capacity, meaning they reach a stable point (no longer making strides, or progress has ceased), they will discharge from in-home and we can seek outpatient therapy, adult daycare, etc. Either private pay or if you qualify, Medicaid. I look at Medicare as a 'step down' shorter term phase between the event/illness and long term condition/lifestyle. Proactivity is key, so important, and your loved in is fortunate to have you as their advocate.
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Also this has nothing to do with your question but really emphasize to your LO the importance or doing all the therapy so she/he can get back where they used to live. Otherwise it’s a step up to the next level of care. I know, we’ve been there twice now. Many time they are stubborn and resistant.
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There's no issue right now. We just started so aren't even close to being near the 100 days. As part of the admission process, they pointed out the criteria for discharge being "no improvement", whether that's in 10 days or 100 days. I asked for clarification saying she could walk before she had the fracture, so shouldn't she recuperate until she can walk again or at least until the fracture mends? They said if she stops making progress and plateaus, whether she regains function or whether the bone is not mended, then that becomes her new baseline and she will be discharged regardless of her condition.

Looking at the Jimmo settlement, progress is not the criteria. In the update to the CMS manual, they clearly state that it's not. The bottom line criteria is to prevent deterioration in function. That's not even due to the Jimmo settlement. That's been the law for over 25 years. The Jimmo settlement was that Medicare needs to enforce that law instead of letting people get discharged for "no improvement".

I spoke to Medicare and they said I should appeal if there's a "no progress" discharge. Which I think now is the way to go. It could not be an issue. Why make it an issue now? I also spoke to our supplemental insurance company and they said there is no policy for "no progress" discharges during recuperation.
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Judysai422 Jun 2019
Interesting...for my mom it was cooperation. They said if she did not participate they would discharge. I would ask to speak to the head of the facility for clarification. Have the law right in front of you and ask how they fulfill the legal requirements.
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Ask them if they've read Jimmo. Tell them that they will be speaking to the patient's lawyer.
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There is a third option.... wait until a couple days before they plan to discharge and then appeal the decision.

this will get kicked up to Medicare. If Medicare again refuses, then either she must pay herself, or she must move to a long term facility or home.
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needtowashhair Jun 2019
That seems to be the best way to go.
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