MARCH 2013



James C. Kovaleski, Esq, is an associate attorney with OWM Law and Co-Chair of the Estate Planning Practice Group. Mr. Kovaleski concentrates his practice in the Estate Planning and Administration, Elder Law, Tax Law, Business Planning and Real Estate Transaction areas.

Mr. Kovaleski is active in the Phoenixville area, working out of OWM Law’s Phoenixville office, serving as a Phoenixville Council member, as well as serving on the Boards of various local non-profits. He lives in Phoenixville with his wife and daughter.

Phone: 610-917-9347
Fax: 610-917-9348

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.


Medicare is a national insurance program which is administered by the Federal government. One of the benefits that Medicare offers is payment for a maximum of 100 days in a skilled nursing facility. This benefit is generally available when a patient has spent three or more days in a hospital and, as a result of that hospital stay, requires some rehabilitation.

Previous to a settlement agreed to earlier this year, the standard used to determine whether Medicare would pay for the rehabilitation of a patient in a skilled nursing faculty was the “improvement standard.” Under this improvement standard, if the patient was not improving or had “plateaued,” further Medicare coverage of the patient’s stay in a skilled nursing facility by Medicare was terminated. This occurred even if the patient had days remaining under the 100-day maximum benefit.

The Center for Medicare Advocacy, Inc. filed a lawsuit, Jimmo v. Sebelius, with the United States District Court. As a result of this case, Medicare agreed to a settlement on January 24, 2013. Pursuant to this settlement, the standard used by Medicare to determine whether or not the patient continues to qualify for payment of services in a skilled nursing facility would not be the improvement standard but would rather be a standard based upon the current condition of the patient, including whether or not the care is needed to slow further deterioration.

Hopefully, as a result of this settlement patients will be able to access additional care under Medicare and with this additional care, patients will avoid situations where repeat hospitalizations and further expensive care are necessary.


There are several times when a Medicare appeal may be filed on behalf of a patient, including when a patient is notified that he or she will be discharged from a hospital or if Medicare is denying payment for care in a skilled nursing facility while the patient has not reached his or her maximum 100-day time period, or Medicare home care being terminated before the patient is ready.

In order to appeal a decision, the patient should first call and then file a written appeal with the local Quality Improvement Organization (QIO). Generally, the patient will receive a written notice indicating that he or she has the opportunity to appeal, at which time the appeal should be filed within the time frame listed on the Notice.

While the appeal is pending, Medicare will generally pay for the continued care of the patient, whether in the nursing facility (as long as the patient has not reached the maximum 100-day benefit) or while in the hospital.

If the patient disagrees with the determination made by the QIO, the patient can continue to appeal that decision through various levels and, ultimately, to the Federal court, if necessary. In the instance that you believe that an appeal may be necessary, you should discuss it with your Elder Law attorney.

If you would care to discuss the above in detail, please call me at 610-917-9347 or email me at jkovaleski@owmlaw.com. Also, please watch OWM's March 2013 Legal Talk program regarding Elder Law Update on our website here.


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David A. Megay, Esq., James C. Kovaleski, Esq., and Joseph K. Koury, Esq., presenting at the Phoenixville Area Chamber of Commerce 3-part course on 3/13/13, 3/20/13, and 3/27/13 - "Women in Investing" (See Phoenixville Chamber's website here or call 610-933-3070).

David A. Megay, Esq., speaking at Chester County Night School Seminars at Owen J. Roberts High School, Pottstown, PA, on 4/3/13 - "Ask the Lawyer: Starting Your Own Business: A Legal Standpoint," and on 4/10/13 - "Ask the Lawyer: Legal Tips on How to Buy and Sell Real Estate in Pennsylvania" (contact Chester County Night School at 610-692-1964).

David A. Megay, Esq., speaking at SCORE Business Planning Seminars on 4/22/13, 9/9/13 and 11/4/13 (contact SCORE at 610-327-2673).

Victoria S. Hollister, Esq., speaking at Chester County Night School Seminar at Owen J. Roberts High School, Pottstown, PA, on 4/3/13 - "Prenuptial, Postnuptial and Cohabitation Agreements" (contact Chester County Night School at 610-692-1964).

Kathleen M. Martin, Esq., speaking at Chester County Night School Seminars at Owen J. Roberts High School, Pottstown, PA, on 4/17/13 and 5/2/13 - "Elder Law Issues" and on 4/23/13 - "Beyond the Simple Will" (contact Chester County Night School at 610-692-1964).

Kathleen M. Martin, Esq., presenting at the Pennsylvania Bar Institute's “Understanding the Basics of Elder Law” on 3/14/13 (contact PBI at 1-800-247-4724).

Watch Legal Talk, brought to you by OWM, on PCTV, Tuesdays at 8:30 on Channel 28, and Thursdays at 9:30 p.m. on Channel 98, or on our website at www.owmlaw.com/legal_talk/legal_talk.php.

Read Legal Ease every first and third Sunday in the Pottstown Mercury.

O'Donnell,Weiss & Mattei, P.C.

41 E. High Street
Pottstown, PA 19464
Fax: 610-323-2845

347 Bridge Street, Suite 200
Phoenixville, PA 19460
Fax: 610-917-9348