What is Medicare's '100 day spell of illness' rule?

Por: Legal Aid Service of Northeastern Minnesota-Duluth LSC Funded


A legal question and answer line for Seniors.



I broke my hip and was in the hospital for one week before I was transferred to the nursing home for rehabilitation. I stayed at the nursing home for about one month. The nursing home assured me that Medicare would pay for all of my stay at the nursing home. I got well and returned home. Later, I was astounded when I received a bill in the mail from the nursing home for over $1500! I don't understand why the nursing home is billing me after assuring me that Medicare would pay for it all. What should I do?

Signed, Lillie



Dear Lillie:

I do not know for certain without knowing your situation in more detail, but it sounds like Medicare's "100 day spell of illness" rule is the reason for the bill. Most people do not know about the details of this rule, and unfortunately, in my experience, some hospitals and nursing homes do not adequately explain how it works. Hopefully, this article will shed some light on your situation, but you should contact the nursing home and ask for an explanation of the bill. If you are unsatisfied with their explanation, you may contact the Ombudsman for Older Minnesotans at 1-800-657-3591 (TDD/TTY, please call 711 and/or our office for help.

If you are old enough to be covered under Medicare, Medicare will pay for your acute and rehabilitative care, but only if you had at least three "qualifying" days in the hospital. A qualifying day means that you are admitted as an inpatient. If you meet the qualifying day threshold, Medicare will pay for your care in full for the first 20 days, as long as you keep needing "skilled care". Skilled care means that you need therapy and/or acute care of some nature. For the 21st through 100th day, Medicare will pay a portion of your care; if you have supplemental health insurance, they will pay for the portion that Medicare does not pay. Once you require only custodial care (e.g. care for your daily activities of living), the hospital/nursing home will tell Medicare and Medicare will terminate (stop paying). When Medicare terminates, your supplemental health insurance will also terminate. At that point, you will either be on private pay or be eligible for Medical Assistance to pay for your care.

It sounds like one of two things may have occurred in your situation - either you did not have supplemental insurance to pay for the portion that Medicare didn't pay during the 21st to the end of your stay in the nursing home, or you stopped receiving "skilled care." Because you were on rehabilitation, the more likely scenario is that you did not have supplemental health insurance for payment of the unpaid portion during the 21st to 37th day of your stay (you stated that you had care for five weeks). In other words, for those last sixteen days of your stay, your cost of care was only partially paid by Medicare. If you have supplemental insurance, tell the nursing home to submit a claim. If you did not have supplemental insurance, you are liable for the unpaid portion. However, I suppose that you could sue the nursing home for telling you false information that you relied on to your detriment, but I do not know if you would succeed.

If the nursing home said you stopped receiving skilled care, you should have received a notice of your appeal rights. Your doctor's opinion will be very important, as he/she will either agree or not agree that you no longer needed therapy and/or that therapy was not accomplishing anything.

Please note that you are entitled to more than one spell of illness in your lifetime. As long as you return home for 60 consecutive days, you will be entitled to another 100 day spell of illness if you go to the hospital in the future (and meet the 3 day qualifying stay).

Because Medicare is complicated, the rest of this article will attempt to explain some of your rights. In general there are three main situations to be wary of in regards to Medicare and your 100 day spell of illness period:

1. When you are not admitted as an inpatient in the hospital, but are still present in the hospital under "outpatient observation",

2. When you are discharged from the hospital prior to three days, and

3. When the hospital or nursing home feels you are no longer receiving "skilled care" under the Medicare definition, which will mean Medicare will stop paying for your care.

Each of these situations can be appealed. You should receive a Medicare notice of your right to appeal a discharge and a termination of Medicare coverage.

If you are being discharged before three days have elapsed and you believe you should medically still be in the hospital, you can immediately appeal that decision. The hospital will give you a written notice of your Medicare rights, called "An Important Message from Medicare." It will describe your right to appeal the discharge decision. Do not wait to appeal until after you leave the hospital; call from your hospital room. Call the number on the notice; it is answered during business hours, 7 days a week. If you call after 4:30 pm and leave a message, your call will be returned the following morning. The organization in Minnesota that handles discharge appeals is Stratis Health. The Discharge Appeal Line is toll-free at 1-866-894-1327.

If a health care facility decides that you are no longer receiving "skilled care", Medicare will stop paying (and so will your supplemental health insurance). This is also known as the "Improvement Standard". It is often used to terminate coverage on the grounds that your condition is stable, chronic, or not improving, or that the necessary services are for "maintenance only." This restrictive standard seems to conflict with the Medicare Act and can be appealed. To the contrary, the Medicare Act and federal regulations seem to support coverage for maintenance health care and therapy. For example, 42 CFR §409.32(c) states: "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?". In addition, 42 CFR §409.44(c)(2)(iii) supports coverage if the condition will improve "or the skills of a therapist [are] necessary to perform a safe and effective maintenance program. " According to the Center for Medicare Advocacy, Inc., the Medicare Act itself only refers once to the patient's need to improve in order to receive coverage and that is with regard to a "malformed body member." 42 USC §1395(a)(1)(A).

Note - a new situation seems to becoming more prevalent across the country. Some hospitals across the country are trying to avoid admitting patients as inpatients in order to be able to bill a different source other than Medicare Part A. Inpatient care is covered by Medicare Part A and outpatient care is covered by Part B. Under Part B, various services you would get in acute care and your entire subsequent nursing home stay, including prescription medications, will not be covered by Medicare and you will be charged for them. Neither the Medicare statute nor the Medicare regulations define observation services. In most cases, the Manuals provide that a beneficiary may not remain in observation status for more than 24 or 48 hours. It is not clear when the hospital is required to give you an advanced notice of non-coverage in this situation. The situation can become even more complicated ever since the Centers for Medicare and Medicaid Services (CMS) authorized hospitals to have "hospital utilization review committees". These committees may retroactively change a patient's status from inpatient to outpatient if certain circumstances are met. If the committee believes the patient's inpatient stay is not medically necessary and should be reclassified as an outpatient stay, CMS requires that you get promptly notified in writing.

If you have a complaint or inquiry about Medicare, you may contact the Medicare Ombudsman at 1-800-Medicare.



This column is written by the Senior Citizens' Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us with questions for legal help by writing toSenior Citizens' Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to www.lasnem.org. Reprints by permission only.

Última revisión y actualización: Aug 19, 2009

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