FLORIDA'S LONG-TERM CARE ADVOCACY PROJECT
RIGHTS TO MEDICALLY NECESSARY THERAPY (SPEECH, PHYSICAL, OCCUPATIONAL)
CMS Notices in Traditional Medicare
Overviews of Appeals
Appeal Regulations
Residents Dually Eligible for Medicare and Medicaid
Florida Medicaid
Advocate Materials
DURABLE POWER OF ATTORNEY
ASSISTED LIVING FACILITIES
Statutes, Rules, and Regulations
Other Relevant Laws and Resources
Other State Best Practices: Minnesota
Comment Letter
NURSING HOME DISCHARGES
Statutes, Rules, and Regulations
Materials for Handling a Discharge
Materials for Advocates and Ombudsmen
Sample Discharge Final Orders
Consumer Handouts
Other Resources
RIGHTS TO MEDICALLY NECESSARY THERAPY (SPEECH, PHYSICAL, OCCUPATIONAL)
- Jimmo v. Sebelius CMS Federal Website (including Important Message About the Jimmo Settlement; Settlement Agreement approved by Federal District Court in Vermont, Jan. 24, 2013; Fact Sheet; Medicare Manual Updates, Frequently Asked Questions)
- “Discharge’ from a Skilled Nursing Facility: What Does it Mean and What Rights Does a Resident Have? (Center for Medicare Advocacy [CMA] Alert, Jan. 13, 2016) (discusses transfer and discharge rights of residents, as separate from, and in addition to, Medicare coverage and appeal rules)
- Survey and Certification Issues Related to Liability Notices and Beneficiary Appeal Rights in Nursing Homes, Centers for Medicare & Medicaid Services [CMS], S&C-09-20 (Jan. 9, 2009) (describes expedited and standard appeals in traditional Medicare)
CMS Notices in Traditional Medicare
- Notice of Medicare Non-Coverage (NOMNC) (CMS form for expedited appeal)
- Skilled Nursing Facility Advance Beneficiary Notice of Non-Coverage (SNFABN) (CMS form for demand bill)
Overviews of Appeals
- Medicare Appeals, CMS (describes appeals for traditional Medicare and MedicareAdvantage)
- Self-Help Packet for Skilled Nursing Facility Appeals Including “Improvement Standard” Denials, CMA (Feb. 12, 2013)
- Expedited/Fast-Track Medicare Appeals in Skilled Nursing Facilities in Light of the Jimmo v. Sebelius Settlement Agreement, CMA (Oct. 14, 2019)
Appeal Regulations
- Traditional Medicare
- Expedited appeal, 42 C.F.R. §405.1200-.1204
- Medicare Advantage
- Request organizational determination
- Request for service, 42 C.F.R. §422.568(b)
- Request for payment, 42 C.F.R. §422.568(c)
- When plan refuses to provide or pay for services, 42 C.F.R. §422.566(b)(3)
- Request organizational determination
- Later Stages of Appeal
- Redetermination
- 42 C.F.R. §405.954-.958 (traditional Medicare)
- Reconsideration by Qualified Independent Contractor (QIC)
- 42 C.F.R. §405.960-.978 (traditional Medicare)
- 42 C.F.R. §422.578-.422.596 (Medicare Advantage)
- Right to a hearing (Administrative Law Judge)
- 42 C.F.R. §405.1002-.1058 (traditional Medicare)
- 42 C.F.R. §422.600, .602 (Medicare Advantage)
- Medicare Appeals Council
- 42 C.F.R. §405.1100-.1130 (traditional Medicare)
- 42 C.F.R. §422.608 (Medicare Advantage)
- Judicial review in Federal District Court
- 42 C.F.R. §405.1136 (traditional Medicare)
- 42 C.F.R. §422.612 (Medicare Advantage)
- Redetermination
Residents Dually Eligible for Medicare and Medicaid
- How Do Dual-Eligible Individuals Get Their Medicare Coverage?, Maria T. Pena et al., KFF (Jul. 31, 2023)
- Beneficiaries Dually Eligible for Medicare & Medicaid (MLN Fact Sheet), CMS (Feb. 2022)
- Medicare Cost-Sharing for Dual Eligibles: Who Pays What for Whom?, CMA Alert, Apr. 24, 2008)
Florida Medicaid
- At-a-Glance: Medicare and Medicaid: Dual Eligibles in Statewide Medicaid Managed Care (SMMC), Florida Agency for Health Care Administration (AHCA)
- Authorization Requirements: If a dual eligible requires a Medicare-covered service, the dual eligible must follow Medicare’s service authorization protocols. SMMC plans do not prior authorize services covered by Medicare.
- Medicare Crossover Claims: When there is a cost-sharing amount for a dual eligible, the Medicare system automatically transmits a ‘crossover’ claim to the Medicaid system for processing of the cost-sharing amount in accordance with SMMC contract requirements.
- Fla. Admin. Code R. 59G-1.052, Third-Party Liability Requirements
- Florida Medicaid Health Care Alert, AHCA (May 3, 2021)
- Effective July 1, 2021, skilled nursing facilities (and other specified providers) “must bill all services to a recipient’s D-SNP. The D-SNP is responsible for providing and/or arranging for Medicare and Medicaid benefits that a dually eligible individual is entitled to receive. Please note, a recipient can also be enrolled in a Medicaid Long-Term Care Plan, which is responsible for Medicaid long-term care services.”
- Alert also lists the D-SNPs in Florida.
Advocate Materials
- Physician Template (regarding the need for ongoing physical therapy)
DURABLE POWER OF ATTORNEY
- Powers of Attorney and Similar Instruments, Ch. 709, Fla. Stat. (2023)
ASSISTED LIVING FACILITIES
Statutes, Rules, and Regulations
- Fla. Stat. §§ 429.01–429.55
- Fla. Admin. Code R. ch. 59A-36, Assisted Living Facility
- 42 CFR 441.530(a)(1)(vi)(A) (HCBS Eviction Rule)
- Fla. Stat. § 429.28(k) (Notice of Involuntary Discharge)
Other Relevant Laws and Resources
- Fair Housing Act
- Disability Rights Florida
- HCBS Settings Rule
Other State Best Practices: Minnesota
- Minn. Stat. ch. 144G (2022) (Assisted Living)
- Minn. Stat. §§ 144G.50–144G.57 (Contracts, Terminations, and Relocations)
Comment Letter
NURSING HOME DISCHARGES
Statutes, Rules, and Regulations
- Fla. Stat. § 400.0255
- 42 C.F.R. § 483.15
- Appendix PP to CMS State Operations Manual
- Fla. Admin. Code R. ch. 65-2
Materials for Handling a Discharge
- Florida Agency Indexed Orders Search (prior decisions)
- AHCA Facility/Provider Locator
- AHCA Nursing Home Discharge Notice
- Sample Discharge Notice
- Fair Hearing Request Form
- Filing Request
- Notice of Appearance
- Order Setting Hearing
- Request for Continuance–Retained Counsel
- Request for Continuance–Unretained Counsel
- Motion to Continue Hearing
- Motion to Continue and for In-Person Hearing
- Notice of Taking Corporate Rep Deposition
- Deposition Authority Letter
- Motion to Compel
- Motion to Shorten Time for Response
- Deposition Transcript
- Notice of Dismissal
- Final Order
Materials for Advocates and Ombudsmen
- Defending Evictions from Florida Nursing Facilities
- Advocate’s Guide to the Florida’s Long-Term Care Medicaid Waiver
- Ombudsman Program Contact
- Ombudsmen Discharge Checklist
Sample Discharge Final Orders
- Failure to Pay
- Health Has Improved
- Needs Cannot Be Met
- Needs Cannot Be Met; Notice Defective
- Health and Safety Endangered
- Nursing Home Discharge Final Orders Summary
Consumer Handouts
- Transition from a Florida Nursing Facility into the Community (Handout on the right to home/community placement–LTC Waiver–for nursing home residents)
- Know Your Rights: Chemical Restraint
Other Resources