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Patients undergoing physical therapy sometimes had a problem with Medicaid covering the service.

Szczygiel discusses Medicare policy revision

Anthony Szczygiel

Law School Professor Anthony Szczygiel is working with UB’s new Institute for Person Centered Care to help elderly and nursing home patients benefit from a revision in Medicare policy that should enable them to obtain better care in skilled care facilities and at home through home health care agencies.

Szczygiel, director of the law school’s William and Mary Foster Elder Law Clinic, says the revised Medicare rule clarifies a misunderstanding about coverage that has complicated the lives of patients for years, affecting both nursing home residents and individuals who sought home health care services.


Published April 25, 2013

Can you please explain the specifics of the policy change?

AS: Medicare has agreed to provide Medicare-eligibles with better access to nursing home services, home health care and outpatient therapy. The problem was a shadowy “improvement standard.” In many cases, providers and/or insurers denied or terminated a Medicare participant’s skilled services on the grounds that their condition was stable, chronic, not improving, or that the necessary services were for “maintenance only.” The legal basis for these denials was nonexistent; however the results were very real: The participant would not receive skilled services that are beneficial to them, and with the denial or termination of skilled services, Medicare would not help to cover the cost of nursing home care, the needed home health care or outpatient therapy.

Insurers and long-term care providers have been denying needed therapy and nursing services to Medicare participants, even though the services would benefit those individuals. The insurers and providers believed, incorrectly, that to have Medicare cover these claims the individual would have to improve in a short period of time.

Medicare denies they ever had such a policy restriction, but to settle a national class-action lawsuit, they agreed to revise their policy statements.


What was the implication of the previous, vague regulations? Who was especially hurt by these unclear conditions of coverage?

AS: The “improvement standard” has had a particularly devastating effect on patients with chronic conditions, such as multiple sclerosis, Alzheimer's disease, ALS, Parkinson’s disease and paralysis. Here is an example: A husband has MS, a condition that limits his ability to care for himself, and the disease is slowly advancing. His wife works full time but has been trying to provide all his care so he can live at home with her.

Last year the home health care agency refused to help, saying that while therapy would help him and slow his decline in physical abilities, he would not get better. Under the revised standard, since the therapist’s service would help him, the home care agency could develop a plan of care and send the therapist to the home to carry that out. Not only would the patient benefit from the therapy, but since he would be getting a “skilled service,” Medicare also could cover the cost of home health aides who would help take care of his personal care needs a few hours a day. His wife could continue to work and he could continue to live at home.

Here is a true-life success story that shows the power of the new rules. A 92-year-old woman fell and broke her hip. After surgery, she went to a nursing home for rehab. Despite the traumas of the fall, a major broken bone, the hospital stay and surgery, the therapist expected this woman to respond almost immediately to therapy. 

After three weeks, the therapist said he had to stop the treatment because the woman had “plateaued” in her progress. She was not able to walk at that point.  The woman’s daughter, a good advocate, had heard about this new standard, and brought it and the settlement agreement to the attention of nursing home personnel. It took some effort and persuasion, but eventually they agreed to continue the therapy since they realized this “maintenance program” is covered by Medicare. Two weeks later, this woman is mobile—walking down the hallways using a walker. 

Not every case will show improvement like this, but at least folks will be given the chance. At a minimum, the new rules will help these individuals keep more abilities than if the therapist gives up on helping them.


How does the new definition of “skilled care” affect medical personnel?

AS: Medical personnel can now provide the care needed by these individuals and give them helpful therapy or nursing services, even if the individual’s condition will not improve. They no longer need to fear that such efforts will be punished after the fact, with Medicare pulling back payments or even adding penalties.


Do you think this will increase the overall cost of the Medicare program?

AS: I think we can anticipate some increase in Medicare coverage—and thus payments for these needed services—in the short term. However, research suggests that these services can save money in the longer term as individuals can avoid some of the current problems of re-hospitalization or extended stays in a nursing home.