The reason the refusal to pay problem arises is that insurance companies and their insurance policies generally define "custodial care" as "assistance in daily living". The insurance policy usually says that the insurance company will not pay for "custodial care".

This can be especially disastrous for ALZHEIMER patients. They paid premiums thinking the insurance policy will cover them in the event of illness. Even if they are capable of walking about, they are still very ill as there is progressive deterioration of nerve cells from the cerebral cortex, resulting in the need for long-term nursing care. If the insurer fails to pay for a substantial portion of the treatment the average person or family will be drained of their resources very quickly.

The problem can be alleviated somewhat by having an aide do the "assistance in daily living" portion, and having the nurse do the nursing portion of the care. Hopefully, the insurer will pay for the nurse. But health aide services for many hours a day can also be very expensive, and their use can be dangerous to the patient if the patient is subject to choking, for example, which may be occur with mid-to-late-stage ALZHEIMER patients. In such cases a nurse is a necessity, and a doctor will certainly certify as to that necessity.

If the care is to be paid for, it will require a detailed plan of treatment. The doctor should show in the plan of care, if possible, all the risks for which the presence of a nurse would be necessary, and which cannot be dealt with by an aide. If the doctor issues such a plan of care, and certificate of medical necessity, it would be best to discuss it with the insurance company's case manager. The insurance company might approve the care at a lower hourly rate, or they might accept care for a certain number of hours a day, which might be adequate for the particular patient involved. Unfortunately, there might not be enough time to work out these arrangements before a patient is accepted by either a long term health care facility or a community health care agency.

If you have already taken the patient, and the insurance company refuses to pay for any of the treatment, your response should be immediate. You should, of course, have the doctor amend his plan of care and certificate of medical necessity to show why treatment by anyone less than a nurse would endanger the patient's life. The denial by the insurance company should be immediately appealed, using as support the amended plan of care and the certificate of medical necessity.

If the appeal fails, then a lawsuit should be brought. The essence of the lawsuit should be that although the patient is technically being given 'custodial care', if we consider the patient's entire condition, the primary purpose of the nursing care is not for custodial care, but for treatment. If the insurer does not pay for the care then the patient's life will be endangered.

But before starting the lawsuit, the insurance company should be made aware that the issue has been litigated in several MEDICARE cases, and MEDICARE was required to pay for the treatment even though some of it was "custodial care". In these cases the Court held that:

1. the insurer must consider the over-all condition of the patient in deciding the medical necessity of such care,
2. the predominant prescription by the doctor was for treatment, or management of the illness, not for custodial care,
3. the care was necessary to prevent further injury. Kuebler v Secretary of Health and Human Services, 579 Fed Sup 1436; Sherran v Weinberger, 392 Fed Sup 106; Allen v Richardson, 366 Fed Sup 516; Samuels v

Weinberger, 379 Fed Sup 120. These cases involved assistance in feeding and evacuation, but the courts held that in view of the patient's overall condition, this was not custodial care, but was necessary for management of the illness the patient.

As we have suggested, if the appeals are unsuccessful, a lawsuit should be considered. If the doctor can certify that the nurse is necessary to avoid further injury to the patient, then there is a chance of success in a lawsuit.