Alliance of Family Councils of NY

Does Therapy (Physical, Occupational) Have to End?

Charles Gourgey

One of the most difficult words to hear in a nursing home is “plateau.”

“Your loved one has reached a plateau. She is not making any further progress. We have to discontinue her physical/occupational therapy.” And in many cases, once that therapy is discontinued the person’s condition declines and the family feels helpless.

For most people receiving skilled therapy services in a nursing home, Medicare covers the cost. Medicare Part A (“hospital insurance”) will cover up to 100 days of skilled therapy services. Long-term nursing home residents who require such services after 100 days may apply under Medicare Part B.

Sometimes people who enter a nursing home for rehab think they will get 100 days of coverage no matter what. They may be in for a shock when told their coverage is ending much sooner. Those 100 days of Medicare coverage are not unconditional; certain requirements must be met and documented. Cutting off skilled services before the 100 days expire is extremely common, usually for the stated reason that the person has stopped progressing or has reached a “plateau.” The requirement that the person continue to make forward progress in order to stay covered is called the “improvement standard.” A skilled nursing facility (or “SNF,” a fancy term for a nursing home) may be reluctant to bill Medicare when it can no longer document continuing improvement, since billing for services that cannot be justified is considered fraud.

The improvement standard had a dramatic effect on the life of Glenda Jimmo, a 76-year-old Vermont woman blind since childhood. Because of poor circulation caused by diabetes, she lost her right leg. She continued living at home, receiving wound care and nursing services from skilled professionals. But once it was decided she was no longer improving, her Medicare contractor cut off coverage for those services.

In 2011 the Center for Medicare Advocacy brought a class-action lawsuit in federal district court in Vermont (the state where Ms. Jimmo resided), contesting the improvement standard for Medicare coverage. Jimmo was the lead plaintiff; the named defendant was Health and Human Services Secretary Kathleen Sebelius. The case of Jimmo v. Sebelius was settled, and the court approved the settlement on January 24, 2013. The settlement required CMS (the Centers for Medicare and Medicaid Services) to clarify its policies to ensure that the improvement standard is not imposed where it should not apply. Instead, it must be made clear that Medicare will in certain cases cover skilled therapy services even when improvement is not expected.

In spite of efforts to make the decision clear, there is still much confusion concerning Medicare and the improvement standard. More than a year after the settlement, the news has still not filtered down to many SNF rehab departments. Rehab directors will sometimes still automatically deny skilled therapy when a resident reaches “plateau.” At the other extreme the Jimmo v. Sebelius decision has sometimes been publicized as an expansion of Medicare coverage, accompanied by the belief that no resident who reaches “plateau” can be denied skilled therapy if the resident wants it.

Neither understanding is correct. This becomes apparent when we look at the actual language of the settlement.

First, the settlement emphatically states that the Medicare rules have not changed:

Existing Medicare eligibility requirements for coverage remain in effect. Nothing in this Settlement Agreement modifies, contracts, or expands the existing eligibility requirements for receiving Medicare coverage, including such requirements found in:
a. Posthospital SNF Care, as set forth in 42 C.F.R. Part 409, Subparts C and D, and related subregulatory guidance. (emphasis added) (1)

“C.F.R.” refers to the Code of Federal Regulations. In particular, the following section:

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. (2)

The emphasis is on the word “skilled.” The capacity to improve is not required for coverage of these therapies, but a demonstrated need for skilled services is:

The manual revisions will clarify that, under the SNF [skilled nursing facility], HH [home healthcare], and OPT [outpatient therapy] maintenance coverage standards, skilled therapy services are covered when an individualized assessment of the patient’s clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist (“skilled care”) are necessary for the performance of a safe and effective maintenance program. 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. When, however, the individualized assessment does not demonstrate such a necessity for skilled care, including when the performance of a maintenance program does not require the skills of a therapist because it could safely and effectively be accomplished by the patient or with the assistance of non-therapists, including unskilled caregivers, such maintenance services will not be covered under the SNF, HH, or OPT benefits. (emphasis added) (3)

The criterion for coverage is not the capacity for improvement but the need for skilled services. If skilled therapy can be justified even only to maintain the person’s present condition or to prevent deterioration, it is covered. However, if unskilled maintenance services are sufficient to meet the person’s needs, then skilled services are not covered. A common example is people on “nursing rehab” (range-of-motion exercises and/or floor ambulation provided by trained nurses’ aides on the resident’s unit) for whom skilled therapy would provide no additional benefit as stated above. Medicare does not cover skilled therapy in such cases.

There is one exception to this negation of an improvement standard: the inpatient rehabilitation facility (IRF). In the IRF an improvement standard is considered appropriate and may be applied:

The maintenance coverage standard for therapy as outlined in this section does not apply to therapy services provided in an inpatient rehabilitation facility (IRF) or a comprehensive outpatient rehabilitation facility (CORF). (4)

However, an IRF must not be confused with the rehabilitation services of an SNF (nursing home). The IRF provides a higher, more intensive, hospital-level of care, typically involving three hours of therapy a day. It is a completely different situation from rehab in a nursing home, and the language associated with the IRF should not be applied to nursing home rehab.

Indeed, the Medicare Benefit Policy Manual (chapter 8) makes clear that in the nursing home skilled rehabilitation therapy should not be held hostage to a capacity for improvement:

Coverage of nursing care and/or therapy to perform a maintenance program does not turn on the presence or absence of an individual’s potential for improvement from the nursing care and/or therapy, but rather on the beneficiary’s need for skilled care. (5)

Skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition. (6)

It is important to point this out because some nursing home rehab directors unfamiliar with these clarified guidelines still inappropriately apply the IRF standard to the nursing home. Chapter 1 of the Medicare Benefit Policy Manual does indeed specify an improvement standard - but that chapter applies only to the IRF, and not to nursing homes.

So if you are caring for someone in a nursing home and you hear the word “plateau,” speak to the staff and show them this article. Your loved one may still qualify for skilled therapy services, if it can be demonstrated that only the services of a skilled therapist can adequately provide maintenance or prevent deterioration. Through a process of dialogue with the rehab team rather than confrontation you may be able to negotiate a continuation of skilled therapy even after that option seems exhausted.


(1) United States District Court for the District of Vermont, Jimmo v. Sebelius Settlement Agreement (October 16, 2012), 9.

(2) 42 CFR §409.32[c].

(3) Jimmo v. Sebelius, 11.

(4) Ibid., 12.

(5) Centers for Medicare and Medicaid Services, Medicare Benefit Policy Manual (rev. 183, April 4, 2014), chapter 8 section 30.

(6) Ibid., section 30.2.1.

See also:

Center for Medicare Advocacy. “Why the Jimmo v. Sebelius Case Matters: Improvement Standard Stories.”

———. “Improvement Standard and Jimmo News: Skilled Maintenance Services Are Covered by Medicare.”

———. “Self-Help Packet for Skilled Nursing Facility Appeals Including ‘Improvement Standard’ Denials.”

Centers for Medicare and Medicaid Services. MLN Matters #8458 Revised. January 7, 2014.