August 24

Medicaid-Eligible Nursing Home Resident Is Stuck With Costs of Private-Pay Room

An Illinois appeals court rules that Medicaid does not cover a Medicaid-eligible nursing home resident who was in a private-pay room and that the nursing home was not required to move her to a Medicaid-certified bed earlier than it did, meaning that the resident could be discharged from the nursing home for nonpayment. Slepicka v. State (Ill. Ct. App., 4th Dist., No. 12MR743, July 7, 2015).

Mary Slepicka entered a nursing home as a Medicare patient. When her Medicare nursing home coverage ran out in April 2011, she became a private-pay resident.  At the time Ms. Slepicka signed the private-pay contract, money from the sale of her house was her main asset. The nursing home did not place Ms. Slepicka in a Medicaid-certified bed until March 2012. After visiting a financial planner, Ms. Slepicka put the assets from the sale of her house in an annuity and applied for Medicaid. The state granted her benefits retroactive to June 2011.

The nursing home claimed it could not bill Medicaid for the days Ms. Slepicka was not in a Medicaid-certified bed, so it billed Ms. Slepicka. Ms. Slepicka did not pay the nursing home, and the nursing home served Ms. Slepicka with a notice of discharge. Ms. Slepicka appealed the discharge, arguing that she could not be charged for the days Medicaid covered. The nursing home argued it did not put Ms. Slepicka in a Medicaid-certified bed right away because it believed she had assets that she needed to spend down. The trial court granted the nursing home summary judgment, and Ms. Slepicka appealed.

The Illinois Court of Appeals affirms, holding that Medicaid is not required to cover expenses incurred by private-pay residents even if the resident is eligible for Medicaid, and that the nursing home was not required to move Ms. Slepicka into a Medicaid-certified bed. According to the court, “just because a resident is financially eligible for Medicaid, it does not necessarily follow that Medicaid will cover every expense the resident incurs during the period of eligibility, regardless of where the resident incurs the expense.” In addition, the court holds that the nursing home did not know that Ms. Slepicka would qualify for Medicaid as soon as she did, so it was not required to move her into a Medicaid-certified bed any sooner.

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August 15

Agency-Created Rules on Medicare Home Health Services Appeals Are Binding on Agency

Medicare home health services are available for individuals who are “confined to the home.” Medicare pays for these services through contractors known as “Medicare Administrative Contractors” (MACs). A group of individuals filed suit against the Secretary of Health and Human Services alleging the Secretary does not follow its own agency regulations governing appeals of Medicare home health services, which has resulted in improper denial of plaintiffs’ benefits. Although administrative law judges found the plaintiffs to be homebound, the contractors repeatedly denied subsequent claims for services, which plaintiffs contend is in violation of Medicare regulations. The Secretary filed this Motion to Dismiss, which was denied.

The district court held the plaintiffs, who are eligible for both Medicare and Medicaid, have standing to sue even though, as the Secretary asserted, Medicaid would likely pay their claims if they were to be denied Medicare coverage. Plaintiffs are seeking a right to Medicare coverage, and an improper denial of benefits could impose personal liability for uncovered services. Moreover, should Medicaid be forced to pay, one of the plaintiffs would be exposed to estate recovery. In addition, there are differences in the home health services provided between Medicare and Medicaid. Plaintiffs have shown a concrete injury sufficient to support standing. As for jurisdiction, although the court agreed with the Secretary that it does not have mandamus or federal question jurisdiction, the matter is properly before the court under the appeals provision of the Social Security Act found in §405(g). Lastly, the court disagreed with the Secretary’s contention that plaintiffs cannot file a claim for failure to follow interpretive rules related to MACs that do not bind the agency. The court said that it is long settled that rules promulgated by an agency that affect the rights of others are binding on the agency. The regulations governing MACs and Medicare appeals are couched in mandatory language, which, according to the court, shows the agency’s intent to be bound by these regulations.


Ryan v. Burwell, 2015 WL 4545806 (D. Vt. July 27, 2015)

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August 6

Most Americans Want Medicare to Negotiate Drug Prices

A vast majority of Americans say the Medicare health program for the elderly should be able to negotiate with drug companies to set lower medication prices, a practice currently prohibited by law, according to a survey released on Friday. The poll conducted by the Kaiser Family Foundation found that 87 percent of people surveyed want Medicare to have the authority to press drug makers for greater discounts. The skyrocketing prices for crucial medicines have hit both health insurers and consumers, who are being asked to cover a higher proportion of their medications’ cost. Efforts to allow Medicare to negotiate drug prices have not been successful, due to opposition over government interference in the marketplace. Drug manufacturers say their prices reflect the billions of dollars they spend in research and development, both for treatments that are approved and the many more that fail. Previous Kaiser polls underlined other frustrations over drug costs. A top priority for Americans in April was making drugs affordable for people with chronic conditions like diabetes. In a June poll, 73 percent of participants thought prescription drug prices were unreasonable. Over three-quarters of those people said it was because manufacturers set prices too high.

For the article from Reuters, click here.

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August 3

Medicare at 50: Much Accomplished, More to Do

When Medicare was enacted in 1965, more than half of Americans over 65 had no health insurance. The fact that Medicare provided affordable, basic health insurance was a huge boon for older Americans and their families (and eventually, people with disabilities, who were added to the program in 1972). But, despite the tremendous successes of the program over the past 50 years, Medicare can do more to safeguard older people and those with disabilities. While major strides have been made in providing coverage for medications and preventive services, Medicare still lacks coverage in three important areas — eye care, hearing aids, and dental care — no matter how extreme the need. These are all key to health and well-being. Oral health and dental care are particularly important for older people and people with disabilities, who are often more vulnerable to infection, malnutrition, and serious illness. Unfortunately, efforts to clarify and expand Medicare’s coverage of dental services have been stymied. At best, non-routine dental services are only sometimes covered — when they are coupled with exacerbating medical conditions and generally only after lengthy appeals. Medicare contractors regularly deny coverage for nearly any care that has to do with the jaw or mouth. This was not the intent of the law. The Center for Medicare Advocacy frequently hears from beneficiaries with urgent health issues who cannot obtain even extraordinarily complex dental and oral health services due to inappropriately broad Medicare denials.

For the article from The Hill, click here.

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July 30

Home Health Agencies Get Medicare’s Star Treatment

The federal government has released a new five-star rating system for home health agencies, hoping to bring clarity to a fast-growing but fragmented corner of the medical industry where it’s often difficult to distinguish good from bad. Medicare applied the new quality measure to more than 9,000 agencies based on how quickly visits began and how often patients improved while under their care. Nearly half received average scores, with the government sparingly doling out top and bottom ratings. The star ratings come as home health agencies play an increasingly important role in caring for the elderly. Last year, 3.4 million Medicare beneficiaries received home health services, with nurses, aides, and physical and occupational therapists treating them in the home. Medicare spends about $18 billion on the home health benefit, which provides skilled services that must be authorized by a doctor, not housekeeping care that some elderly pay for privately. For both the government and patients, Medicare’s home health visits are one of the least expensive ways to provide care, and the system has been especially susceptible to fraud. Assessing quality is often challenging for patients and their doctors, who must authorize the visits, often just as patients are leaving the hospital.

For the article from Kaiser Health News, click here.

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