Online resource center to help you explore these key issues, and others, regarding your estate.

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Mr. Miller has many years of experience in designing and implementing a comprehensive variety of Trusts, Wills, and other estate planning documents, as well as settling estates in the most expedient and appropriate method. Further, he counsels and assists clients on becoming eligible for VA benefits and Medi-Cal.

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VA Pension/Aid & Attendance/Medi-Cal

Mr. Miller has been active in the area of VA Pension and Medi-Cal for well over a decade. He uses various specialized types of Trusts as well as non-trust strategies to gain eligibility for his clients and save the family money.

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Probate & Estate Administration

Mr. Miller has been settling estates (both simple and complex) for well over 40 years. The starting point is always to create a strategy to settle the estate in the most efficient manner possible with a minimum of taxes. Often times the strategy created allows the family to bypass Probate Court proceedings.

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Why is Hospital Observation Status So Bad? What You Can Do!

By merv,

  Filed under: Elder Law

Dear Mr. Miller:

My Dad was in the hospital for 4 days and then transferred to a skilled nursing facility.  He was there for two weeks.  We just received the bill for the skilled nursing facility in which he received rehab and it is astronomic.   Over $100,000.  I thought Medicare was going to pay for this.   What happened?

Distressed Daughter

Original Medicare
Medicare Advantage
3 Day Rule
At the ER
In the Hospital
Home Health Care, or Inpatient Rehabilitation Facility

Dear Distressed:

Obviously, that is a hefty sum.  The question, of course, is what your Dad’s policies cover.  He could have many different ones.

Original Medicare:  You mention Medicare but, even that has many categories.  Original Medicare does cover a skilled nursing facility after a hospital stay of at least 3 days.  The coverage can extend up to 100 days.  There are some deductibles and copays.  Medigap (or Medicare supplemental policies) fill these gaps in coverage for copays and deductibles.

Medicare Advantage:  Many people have what is called Medicare Part C or Medicare Advantage.  These are offerings of private insurers who are paid by the government Medicare program to cover people who have chosen this coverage.  Most are HMOs (Health Maintenance Organizations).  Many seniors love these programs for their low premiums and they are often lower priced than Original Medicare.  However, many studies have shown that, in many cases, insureds wind up paying more for their care under Medicare Advantage then in the government run Original Medicare program.  And, of course, you are limited to your plan’s network of physicians and providers.  (Original Medicare allows you to use any provider within the Medicare system and that means almost everyone.  That can be important in complex, life saving situations where you need the very best surgeon on the West Coast.)  Since Medicare Advantage programs often offer certain additional coverages beyond that of Original Medicare, you will have to consult your policy terms to see if your Dad should have been covered.

3 Day Rule:  The issue here, whether Original Medicare or Medicare Advantage, is probably the 3 day rule.  Those 3 days in the hospital to qualify for the up to 100 days of skilled nursing facility coverage have to be be in “admitted” status, not “observational” status.  The latter is considered to be outpatient even if you stay overnight.  Often times physicians keep you for observation services while they decide whether to admit you as an inpatient or release you.  Each day of your stay, you or someone on your behalf, should always ask the hospital/physician/hospital social worker/patient advocate if you are inpatient or outpatient.  And if you are in observation status for more than 24 hours, pursuant to both Federal and California law, you must be given a “Medicare Outpatient Observation Notice.”  This form tells you why you are assigned to outpatient and how it affects what you pay in the hospital or after you leave.

At the ER:  If you or your loved one is being moved from the ER to the hospital, find out if the patient is being admitted.  If not, don’t let the ER make the move.  Insist upon being in admitted status.  Even if you are assured of the same hospital treatment either way, that’s not the issue; the three day rule is.  So check the paperwork.

In the Hospital:  If you are in observation status, the best course of action is to try to get that status changed while still in the hospital.  Increasingly, your regular primary care physician is not in charge of your care in the hospital. That is the job of the hospitalist. So your first course of action should be to have your primary care physician contact your hospitalist to attempt to get this status changed.  Since your own physician knows your medical history he/she is best equipped to speak to the hospitalist.  An alternative is to have your care manager, if you have one, advocate on your behalf.  One basis for your argument is that if your care is expected to require you to be in the hospital for at least two-midnights, then official documentation indicates that you should be admitted.  Of course, even if you get the status changed, you still need to meet the three day rule and that three days runs from when the status was changed.  So, this approach needs to be followed ASAP.

Home Health Care, or Inpatient Rehabilitation Facility:  If you are unsuccessful, there are still approaches available to you.  At discharge, if you can be cared for at home see if your physician agrees that home health care is appropriate.  If that care will be skilled nursing or physical therapy, that should be covered if you are “homebound”   (i.e. you can’t go out without extreme effort).  If you cannot go home then see if your physician will issue an order for an inpatient rehabilitation facility (defined by the government agency that oversees this as “a hospital, or part of a hospital, that provides an intensive rehabilitation program to inpatients”).   No three day rule applies to care at this facility.  Involve the care manager in this discussion with your physician.  He/she can be your advocate and speaks the medical jargon.  And if you don’t have a care manger, consider getting one.  They are often times worth their weight in gold.

Appeal:  If all else fails, you can appeal the Medicare denial of coverage of your claim.  This appears to be your best course of action at this point.  Please note that this process is long and arduous and winning can be rare.

We do offer, in most cases, an initial complimentary consultation on Estate Planning, Estate Settlement, and VA and Medi-Cal Benefits.  So please call us at 760-436-8832.


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About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.

  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning

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