1. Is there usually a written denial or reduction notice of therapy? If there is no notice, how can I help the resident make the request for more therapy?

Skilled nursing facilities are required to give a resident a Notice of Medicare Provider Non-Coverage, Form CMS-10123, at least two days before terminating all Part A services. Residents/families must call the Beneficiary and Family Centered QIO (BFC QIO) by noon the next day to appeal.

Facilities are also required to give residents an Advance Beneficiary Notice of Non-Coverage (SNFABN), Form CMS-10055, which gives residents the right to request continuation of services and requires the facility to submit the claim to Medicare for a decision if requested by the beneficiary.

Residents can request a care planning meeting with the facility to request an assessment for more therapy and to discuss the resident’s needs and goals and what the resident needs for a safe and effective discharge.

2. When residents ask how they can get more therapy, what does the long-term care ombudsman (LTCO) need to find out before they can determine if it is a good case for referral to a legal aid program?

The ombudsman needs to know how the resident is paying for the stay–whether the resident has traditional Medicare or a Medicare Advantage plan. Is the resident using Medicare Part A for the stay? How long has the resident been in the facility using Part A (to determine how many days are left in the benefit period)? How many days a week does the resident receive therapy? (Five days a week are needed for coverage or a combination of skilled nursing services and therapy, totaling seven days a week.)
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If the resident is not receiving therapy five days per week, is the resident receiving skilled nursing services for the remaining days of the week? This is a factual determination, which can be based on nursing records, medication records, and any other facility records indicating that the resident is receiving attention from the licensed nurse (for example, many medication changes requiring the nurse to consult with the physician). Evidence from the resident or family about how the resident responded to therapy and its discontinuation is also relevant to showing that a resident was benefiting from therapy and has declined when the facility stopped providing therapy.

3. How long does it take to get to the administrative law judge (ALJ) stage when appealing a Medicare non-coverage of therapy?

Getting to an ALJ takes some time because there are other stages of appeal first, and there needs to be a determination from Medicare to appeal from. But, once the resident requests a hearing before an ALJ, the resident should write “Beneficiary appeal” on the envelope. As a result of the settlement in Exley v. Burwell, 3:14-CV-1230 (D. Conn. Aug. 1, 2016), a nationwide class action, beneficiary appeals are prioritized for ALJ hearings. The ALJ is required to issue a decision within 90 days of the resident’s filing a request for a hearing. Further discussion of Exley.
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4. How do we advocate for the rights that ALF residents need? Do we need a legislative fix?

At the very least, I do think a legislative fix is required both to bring Florida into compliance with the federal HCBS Settings Rule and to provide a measure of due process in the Assisted Living Facility space.  As mentioned during the presentation, promising legislative concepts include the requirement of a pre-termination meeting, an opportunity for a hearing, and mandatory relocation assistance. Though there are many ways to promote legislative change, I would encourage interested advocates to reach out to me (Ellen Cheek) and to FHJP with further questions, ideas, and updates for the most coordinated approach.

5. Regarding the 45-day notice in the ALF, don’t they have to ensure a safe D/C?

At this time, there is no requirement in Chapter 429 requiring a facility terminating a residency to ensure a safe discharge. The statute only requires a resident to receive LTCO contact information so that LTCO can give “relocation assistance.” As a practical matter, that assistance often consists of LTCO simply providing names of other facilities in the area.
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6. Do you have any thoughts on getting the resources needed to pay for litigation costs, like depositions?
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A program can find grants to help cover litigation costs associated with skilled nursing facility discharge appeals. Also, there is nothing to stop a program from using its fees generated elsewhere to support this work.