Up Is Not the Same as Better

The legal standard for skilled therapy has been settled since 2013. The floor underneath it was never built. A dual-track analysis from inside a family navigating it right now.

My mother Rose is in skilled rehab. She got up off the floor. She is not going to get better. Both are true - and only one was ever supposed to determine whether she keeps her care.

By Mark Fukae - Director of Advocacy - Professionals Who Care

My mother, Rose is recovering from a hip fracture in a skilled nursing facility. She also has advanced dementia. At some point during her stay, a clinical team will have to decide how long to keep authorizing physical therapy. The honest answer has nothing to do with whether she's getting better.

In 2013, Jimmo v. Sebelius settled the question: Medicare coverage for skilled therapy does not depend on improvement. It depends on whether the patient needs skilled care to maintain function or slow decline. The improvement standard was rejected outright. But the enforcement infrastructure was never built - the Center for Medicare Advocacy has returned to federal court more than once for non-compliance.

Colorado has a real tool: independent external review under C.R.S. § 10-16-113.5. The state's Division of Insurance assigns a reviewer with no relationship to the carrier, and that reviewer can overturn a denial. It works. Almost no family navigating a dementia care authorization knows it exists - because the pathway was built for someone with the bandwidth to use it.

This week's dual dispatch proposes a fix on two tracks: federal enforcement measurement requiring Medicare contractors to report authorization shortening rates by diagnosis category, and a state-level interactive-process requirement modeled on Colorado's POWR Act - requiring a documented conversation with the family before an authorization is shortened for a patient with a progressive condition.

The Colorado CARE Act, targeting the 2027 legislative session, is the first piece of that architecture. The dyadic codification work targeting the 2028 session is the second.

Up is not the same as better. Rose got up off that floor. She is not going to get better. Both are true - and only one was ever supposed to determine whether she keeps her care.

Read the full OLH dispatch: [SUBSTACK LINK — OLH] Read the Care Futures companion: [SUBSTACK LINK — CARE FUTURES]

Sign or share the Petition: [https://c.org/WjGpN6TYnB] - 705 supporters, 790 signatures, 210 from 1,000

Contact: mark_fukae@casiadvocacy.org | (303) 817-6995