Custodial care

What it means

Plans and Medicare separate skilled care from custodial care. Skilled care needs the training of a nurse or therapist. Custodial care is help with daily living, such as bathing, dressing, eating and moving around. A denial for custodial care says your care is the second kind, so it is not covered.

With a private plan, the plan document defines custodial care. The federal rules in this site’s ledger do not set one, so read your plan’s wording.

With Medicare, coverage of skilled nursing and skilled therapy does not depend on whether you are expected to improve. Under the Jimmo settlement, approved on 24 January 2013, the Centers for Medicare & Medicaid Services confirmed that skilled care is covered when it is needed to maintain your condition or to prevent or slow decline. This applies in skilled nursing facility, home health and outpatient therapy settings. The regulations say the same: “The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed.” A Medicare Advantage plan must follow Original Medicare’s coverage rules and may not deny basic benefits using criteria that are not in those rules.

Who has to act first

You do. If the care is ending soon, read the care-ending page now, because the deadlines for a fast appeal are measured in hours.

For a job-based plan or a non-grandfathered individual plan you have at least 180 days after you receive the denial notice to file the first appeal; your plan may allow more. Medicare, Medicaid and other public coverage have different, often shorter, deadlines (a Medicare Advantage plan allows 65 calendar days from the date on the notice). Check the date on your notice, which controls.

Arguments that work

• Skilled needs, in writing. Notes should show tasks that need a nurse or therapist and the reason a lay caregiver cannot do them.
• “No improvement” is not a Medicare reason. Quote the settlement and the regulation above if the notice says you have plateaued.
• The plan’s own definition. Quote the plan document’s wording and show where your care falls outside it.
• The explanation must fit you. The notice must explain the clinical reasoning as applied to your circumstances, or say the explanation is free on request.
• Limitation on liability in Medicare. When Medicare denies a service as not reasonable and necessary or as custodial care, it still pays if neither you nor the provider knew, or could reasonably have been expected to know, that it would not be covered. You are treated as knowing only if you were given written notice.

Evidence to gather

• Nurse and therapist notes, orders and the plan of care (the provider or agency).
• Your doctor’s statement of the skilled services needed and why (your doctor).
• The plan document’s definition and exclusion (the plan).
• The notice you received and the date you received it (you).
• The plan’s clinical criteria and claim file (the plan, free on request).

What to send

Send a written appeal with the clinical notes, your doctor’s letter and the plan’s own definition. Use the medical necessity appeal letter. Ask for the decision in writing. If the plan upholds the denial of a non-grandfathered private plan, you have at least four months after that final denial to request external review where the dispute turns on medical judgment.

When this is not worth an appeal

If the care is only help with daily living, no skilled staff are involved, and your plan or Medicare excludes it, there is little to argue on that ground. Ask a free counselor about other programs: a State Health Insurance Assistance Program counselor if you have Medicare, or a state consumer help program for other coverage. The free help guide lists where to start.