The Promise and Failure of Medicare Home Health Coverage

1.The Problem

The Center for Medicare Advocacy has been hearing from people who meet Medicare coverage criteria but are unable to access Medicare-covered home health care, or the appropriate amount of care. These problems have been escalating in 2016. Care provided often falls short of care that is covered under the law and ordered by the physician.  There are no practical solutions to obtain care or protections to prevent discharge from care. Many who are unable to access care are unable to stay at home.

In particular, people living with long-term and debilitating conditions find themselves facing significant access problems. For example, patients have been told the following:

  • Medicare will only cover one to five hours per week of home health aide services, or only one bath per week;
  • They aren’t homebound (because they roam outside due to dementia);
  • They must first decline before therapy can commence (or recommence).

Consequently, these individuals and their families are struggling with too little care, or no care at all.

The Center has been contacted about Medicare beneficiaries from all over the country who are struggling to obtain sufficient home health care to stay at home. Here is one example that typifies what we hear from beneficiaries:

  • My dad is in the end stages of Parkinson’s disease and has qualified for home health aide care for 2 hours per week through Medicare.  We were shocked to learn that Medicare only covers a few hours per week and would like to see changes to allow more coverage for individuals living with a long term, progressive terminal disease. (Emphasis added.)

T.J., Montana   (See Attachment A for further beneficiary stories.)

Here is one example that typifies what beneficiaries hear from home health agencies (in an email from a home health agency to a patient who made an inquiry about coverage):

  • “Medicare typically covers only short term rehabilitative care for therapies and nursing as well as a home health aide a few times a week during these rehabilitative episodes to provide bathing help.”

In order to try to help all individuals in need of home care, those who may improve and those who will never get better, and to learn about the breadth and depth of access problems, an advocate for people living with ALS and Staff from the Center surveyed 160 home health agencies in seven states throughout the country. We recognize this is not a scientific effort, but the results are nonetheless telling.  Here’s what we learned:

  • A care manager for people with ALS called 42 of the 48 home health agencies listed on Home Health Compare in her area.  Only 3 of the 42 home health agencies would consider evaluating the individual for care.  None would consider providing more than 3 hours of home health aide per week with a doctor’s order for 20-28 home health aide hours/week.
  • Center staff contacted 118 home health agencies in six states, and also Medicare Advantage plans and 1(800)MEDICARE to inquire what care is available for someone who qualifies for home health coverage. The 1(800)MEDICARE staff made it clear that Medicare can cover up to 35 hours combined of home health aides and nursing combined per week. The Medicare Advantage plan representatives contacted also recognized this by referring to their Summary of Benefits which include up to 35 hours of combine home health aide and nursing as (theoretically) available. Home health industry leaders report more limited coverage from MA plans than from traditional Medicare.  (Attachment B)

Of the total 118 home health agencies contacted, 74 were willing to discuss their services. Of these 74 agencies, 70 said they were able to provide one hour of physical therapy and two hours of nursing a week.  Only 6 agencies (8%) were able to offer up to 20 hours of home health aide a week. 39 agencies (52%) were able to offer up to three visits of a home health aide a week. Many indicated home care patients could expect an aide to bathe them only once per week.  Some suggested that they would send an OT to provide personal care services rather than a home health aide. The vast majority said Medicare was not available for the care requested. Further, most reported that care would be available only for a total of 30-60 days.  (See Attachment B for details of the survey.)

  1. The Law

Home health access problems have ebbed and flowed over the years, depending on the reigning payment mechanisms, systemic pressures, and misinformation about Medicare home health coverage.  Regrettably, it appears these problems are increasing, especially for those with long term, chronic, and debilitating conditions and, if current and proposed policies and practices continue, they will only get worse.

Accordingly, it is important to know what Medicare home health coverage should be under the law.  The threshold criteria are as follows (See Attachment C for more details and citations):

  • A physician has signed or will sign a care plan, certifying that the services are medically necessary; the physician must also certify that there has been a face-to-face encounter with the patient within 90 days prior to the start of care, or within 30 days after the start of care.
  • The patient is homebound. This criterion is generally met if non-medical absences from home are infrequent and leaving home requires a considerable and taxing effort, which may be shown by the patient needing personal assistance, or the help of a wheelchair or crutches, etc. Occasional “walks around the block” are allowable. Attendance at an adult day care center or religious services is not an automatic bar to meeting the homebound requirement.
  • The patient needs skilled nursing care on an intermittent basis (less than 7 days per week but at least once every 60 days) or skilled physical therapy, speech therapy, or continuing occupational therapy.
  • Daily skilled nursing care is available for periods of 21 days or less (with extensions in exceptional circumstances when the need for additional daily skilled nursing is finite and predictable).
  • The care must be provided by, or under arrangements with, a Medicare-certified provider.

AnchorIf the triggering conditions above are met, the beneficiary is eligible for Medicare coverage for home health services. Home health benefits can continue with no duration of time limit so long as these coverage criteria are met.  Coverable home health services include:

  • Part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse;
  • Physical, occupational, or speech therapy;
  • Medical social services;
  • Part-time or intermittent services of a home health aide, and;
  • Durable medical equipment (DME) and medical supplies
  1. Factors Contributing to Access Problems

There are numerous factors contributing to the current home health access problems.  Some of the key driving forces are:

  • CMS’ and its Contractors’ frequent descriptions of Medicare’s home care coverage as a short term, acute care benefit.  (Attachment C)
  • CMS’ and its Contractors’ frequent statements that home health aides are not covered, or are only covered for a few hours per week.  (Attachment C)
  • Payment systems and incentives that reflect these limited, inaccurate understandings of Medicare home health coverage
  • Over-zealous audits and fraud initiatives
  • Coverage denials followed by appeal denials and delays
  • Pre-Claim Review Demonstration Model
  • Quality Measures, including a 5 Star System that seeks improvement
  • All of the above, leading providers to find Medicare a general hassle
  • Implementation of the Face to Face requirement
  • Home health agencies with inadequate staffing
  • Home health agencies not making arrangements for services when they cannot properly provide them
  1. Recommendations

We realize it will require time and consideration of myriad concerns to fully review home health policies and practices. Nonetheless, CMS can take immediate steps, as past administrations have done, to alleviate the building home health access crisis.

CMS should insist that Medicare participating providers and decision-makers properly understand Medicare home health coverage and accurately express it in all communications and actions.  Thus, we recommend CMS act urgently as follows:

  1. As a first step, we urge CMS to issue a Bulletin as soon as possible to all Medicare participating home health care providers, similar to that issued by CMS Administrator Nancy-Ann Min DeParle in 1998. (Attachment D) The Bulletin should remind providers of Medicare coverage criteria and coverable home health. In particular, they should be reminded that homebound patients may be eligible for up to 35 hours per week of home health aides and nursing services combined – separate from any necessary PT, SLP/ST, and OT – so long as coverage criteria are met.

As Administrator DeParle indicated, home health agencies have responsibilities under the Medicare Conditions of Participation in consideration for receiving public funds. Now, more than 18 years later, all too often these responsibilities are once again not being honored. As a result we ask CMS to remind and inform its home care providers that they must:

  • Provide for care ordered by a physician.
  • Balance the cost of caring for any one patient against the cost of caring for all patients.
  • Follow the Medicare Conditions of Participation and provide accurate information to patients about Medicare coverage and payment.
  • Inform beneficiaries about what services are and are not covered.
  • Acknowledge a beneficiary’s right to participate in care planning.
  • Not reduce the amount of care ordered by physicians for beneficiaries.
  • Not discriminate against Medicare beneficiaries.

Finally, the Bulletin should remind home health agencies that failure to meet these requirements may result in having their provider agreements terminated and being barred from billing Medicare.

  1. Further, we ask CMS to issue a Bulletin as soon as possible to all Medicare Administrative Contractors and Medicare Advantage plans similar to that issued to providers, reminding them of Medicare coverage criteria and coverable home health. In particular, they should be reminded that homebound patients may be eligible for up to 35 hours per week of home health aides and nursing services combined – separate from any necessary PT, SLP/ST, OT – so long as coverage criteria are met including for skilled services to maintain function or slow decline.
  2. We ask CMS to survey participating providers and contractors to ensure they are properly articulating and applying Medicare home health coverage and are not inappropriately limiting access to necessary care.
  3. We ask CMS to reissue incorrect and misleading publications on CMS.gov and Medicare.gov websites that do not properly reflect accurate home health coverage.  (Attachment C)
  4. We ask CMS to correct the Social Security Program Operating Manual System (POMS) to reflect the appropriate home health aide coverage law.  (Social Security is willing to do this but has been informed that CMS has primary responsibility)  (Attachment F)
  5. We ask CMS to post the updated U.S. government booklet about Medicare home health care benefits; CMS Product No. 10969. The booklet currently available was last revised in May 2010.
  1. Conclusion

Medicare home health coverage offers the promise of allowing eligible individuals to remain at home with the care they need.  According to Medicare law, regulations and policy, home health coverage for homebound beneficiaries turns on the need for skilled nursing or therapy. Skilled services to maintain function or slow decline can be covered, and eligible individuals can receive up to 28 – 35 hours combined of home health aide and nursing.

Medicare home health coverage is not limited by law to just a few hours of care per week for just 30-60 days, nor does eligibility turn on the individual’s ability to improve. Yet this is what beneficiaries and their families are told all the time. When Medicare beneficiaries seek necessary care, home health agencies frequently decline to provide services ordered by their physicians, and discharge those they do serve prematurely. As a result, many Medicare patients manage with substandard care. Some forego needed care. Others charge the cost of care to their credit cards or enter nursing homes. Too often, family members sacrifice careers to provide what should be available from Medicare certified home health agencies. We have heard all these scenarios.

Homebound patients are being harmed nationwide because the Medicare law is not followed.  We urge CMS to remind all Medicare providers and decision-makers of their obligation to understand, accurately articulate, provide and cover legally authorized and necessary care.

We look forward to working with CMS to help homebound Medicare beneficiaries stay at home with the care they need.

October 4, 2016

ATTACHMENT A

EXAMPLES OF HOME HEALTH ACCESS BENEFICIARY STORIES

Received in September, 2016

______________________

“Upon return from hospital to rehab center, the patient’s pain meds were not adequately adjusted/administrated for two weeks so he could not endure the PT.  Finally, after two weeks of my asking for pain med adjustment, and two days of flu, he received the pain meds and was able to take Pt and did so for three days.  Then, he was told it would not continue because of inadequate progress!  I appealed to two levels of Medicare but received a rubber stamp rejection.  Finally, he came home but we are paying for the home caregivers at a rate of about $9,000+ a month.  Now, that company has terminated services…”

C.G., Missouri

Medicare requires a face-to-face visit with the patient’s PCP.  My husband was bed-bound and could not go.  We discovered the Visiting Physicians Association.  It took a month to get a doctor out to our home.  By then a pressure sore on my husband’s back had opened up.  It took at least two weeks to get a home health care nurse out to interview.  Then it took a week to get a wound care nurse out.  My husband now has a 2×2 open wound on his spine.  We have not as of yet seen a home health aide.”

– L.C., Texas

“My father has ALS, my mother is in a wheelchair following a stroke.  [The Home Health Agency] refuses to bill any more than two hours a day for my mom (Anthem Medicare) and will not bill any at all for my dad even though they both are entitled to 4-5 hours a day of home health care.  I filed a grievance with Medicare and they sent a letter stating that Interim has to bill Anthem for all services covered or not.  So far that is not happening… My father has VA benefits and Interim states they cannot bill both VA and Medicare, even though I contacted both VA and Medicare and as long as they are not billing the same hours, it is ok.  This is insane!!!  Why all this anguish during end of life care?”

D.E., Ohio

“I attempted to get home health coverage … in Wheaton, Illinois… When I contacted them and they saw that I had some nursing benefits available through my private insurance they were eager to set up visits, but when I informed them that I had exhausted those benefits, and that I wanted this to go through Medicare, they said that I did not qualify.  I did get some PT and OT, which was billed to my private insurance but they would not split bill Medicare for nursing and bill my private insurance that still had therapy benefits available.  I was told that I… could get no more therapy because I do not have goals for improvement.  I later spoke to the woman in charge of the billing… Her response was that coverage was given according to the ‘individual home health agencies’ interpretation of the Medicare guidelines…’”

M.L., Illinois

“My father was in the ICU at Emory Healthcare in Atlanta, GA in December 2016 and January 2016. Upon discharge we asked our case worker about obtaining home health care thru Medicare and she told us this was not possible. She even called the Emory ALS Clinic and they confirmed that Medicare does not provide home health care. We now pay for a private nurse to come daily to our home which as you might imagine is costly.”

C.M., Georgia

“I am a long term (11 years) survivor of ALS. My husband is physically unable to help me. I am unable to dress, get out of bed, feed myself or go to the bathroom myself. My resources are completely depleted due to so many years of caregiver costs. I have been told that Medicare covers nothing in terms of care… I literally do not know what I am going to do… I am still able to speak with difficulty. I am on a bipap 24/7. A ventilator is out of the question due to costs…”

C.J., New Mexico

“I had home health from Texas Home Health for about nine months. During this time I was receiving PT and nursing. The doctor also ordered a health aide to assist with bathing, etc. After months of runaround and them continuing to tell me that my [Medicare] insurance was denying it (which they were not) they dropped me. There is no other HH agency in our area that will accept me after they hear my diagnosis.”

J.S., Texas

“My husband has terminal cancer and would like to remain at home until the end. However, we have been told that he can only receive two hours of home care services daily.  I have a severe physical disability myself and I’m unable to assist him as he becomes weaker and unable to do for himself. I am currently paying privately for three hours of service daily for myself and it isn’t enough to help get me by. I’ve worked all my life and I am not on Medicaid, I’m just on Medicare… I continuously read articles that say that people can get more than two hours a day for homecare and yet no homecare agency will allow you more hours. We don’t know what to do!”

– S.J., New York

“I was diagnosed with Multiple Sclerosis in 1993.  I have had two major surgeries for hip/leg fractures from falls, and a separate incident of a fall resulting in a broken shoulder.  I required an in-home Health Aide, PT & OT Services.  In each case, the services were limited by the agency (and supposedly Medicare) because my progress had “plateaued”, I would not improve further, and Medicare would not provide “maintenance” therapies (even though I would deteriorate without consistent service).  The same restrictions were applied when I went to outside PT– coverage was limited to three/six months, then I was told (again) that I had “plateaued” and Medicare would probably deny any further payment.  I was told to sign a form that obligated me to pay for any services that Medicare denied.  Since it would take a few months for Medicare to determine their liability, if I had continued PT, I would be liable for all of their actual billing fees.  My only income is Social Security, so I couldn’t take the chance that Medicare would pay their part.”

J.A., New York

ATTACHMENT B

CENTER FOR MEDICARE ADVOCACY HOME HEALTH SURVEY

118 telephone calls were made to home health agencies (HHA) found on Home Health Compare. We received information from 74 home health agencies, due to unanswered telephone calls and calls to agencies that did not service the specified area. The calls inquired about the availability of services for an individual with either amyotrophic lateral sclerosis (ALS), multiple sclerosis (MS), or Parkinson’s disease who has a doctor’s order certifying 1 hour of physical therapy, 2 hours of nursing and 20 hours of home health aide a week. The results of the calls are summarized below. Note that many agencies indicated they would need to do an assessment and stated they did not have enough home health aide staff to provide 20 hours per week. The calls were made by Center for Medicare Advocacy staff between September 12, 2016 and September 27, 2016.

Geographic area

(Total HHAs on Home Health Compare)

# HHAs spoken to directly that serve the area

Able to offer physical therapy

Able to offer nursing

Able to offer home health aide for 20 hours a week

Able to offer home health aide for 3 visits a week or less

Chico, CA (13)

6

100%

100%

0%

83%

Bridgeport, CT (32)

15

87%

87%

33 %

27%

Hartford, CT (42)

4

100%

100%

0%

75%

Torrington, CT (17)

3

100%

100%

33%

33%

Windham, CT (4)

4

100%

100%

0%

25%

Albany, GA (11)

4

75%

75%

0%

75%

Atlanta, GA (30)

14

93%

93%

0%

64%

Evanston, IL (208)

9

100%

100%

0%

78%

Cleveland, OH (136)

15

93%

93%

0%

40%

Totals

74

95%

95%

8%

53%

Examples of Comments about Home Health Aide Services from Home Health Agencies in the Surveyed States, 1-800-MEDICARE, and Medicare Advantage Plans

California

▪ Medicare doesn’t pay for twice a day, maybe could get twice week. Longest would be for about 6 weeks, for 45 minutes or an hour at the longest. Temporary basis or long enough for caregiver to take over.

▪ Will get 2 visits a week within a 60 day period. Only offered if the patient comes out of hospital and probably short term basis. Often just to help until a caregiver can help instead.

▪ Unsure how many hours beneficiary could get but wouldn’t send a home health aide for that many hours. Would need to get a homemaker agency to help with that amount.

▪ Usually an hour twice a week.

Connecticut

▪ An aide could come for an hour, maybe a couple times a week.

▪ Medicare would not pay for 20 hours of home health aide. Could cover 2 to 3 hours a week, at most.

▪ Medicare would not pay for 20 hours a week. Medicare does not pay for long term home health care and that once an individual improves, they are discharged.

▪ Medicare will not pay for an aide at all.

▪ 1 hour, 3 times a week.

▪ Medicare will not cover home health aide because this is custodial care and Medicare does not cover nonskilled services.

Georgia

▪ Once a day, an hour a day, 3 times a week.

▪ Usually 45 minutes to an hour, 2 times a week.

▪ “Those hours are not protocol per Medicare.” Usually short amount of time until a caregiver can take over.

▪ 2 to 3 times a week and usually a temporary service.

▪ “Medicare does not allow them to go that often.” Home health aide is only 3 times a week if dire, but usually 2 times a week.

▪ Cannot do 20 hours. “That would be a homecare department which is a separate service which is covered by Medicaid or private pay.”

Illinois

▪ Usually only once or twice a week until the patient or family member is trained.

▪ Probably 2 times a week, but can sometimes do 3 times. “A lot of home health care companies are closing because we have new rules. We have trouble catching up.”

▪ “That’s not covered by Medicare anymore.” Could get a maximum of 2 visits a week. “Medicare is really strict now.”

▪ “Medicare allows 2 hours a week.”

▪ “Medicare is trying to limit coverage” with “precertifications.” Can only go a maximum of 3 times a week because “our hands are tied.”

▪ “Home health only covers 2 times a week. That number of hours is probably for homemaker services.”

▪ Could get a maximum of an hour visit, 3 times a week.

Ohio

▪ Medicare will pay for only a couple times a week, less than an hour each but can work with a private homemaker company to get the remaining hours.

▪ “For 20 hours? That’s Medicaid.” Medicare will pay 1 to 2 visits a week. “That’s all that’s covered.”

▪ Once a week for an hour.

▪ Medicare does not cover 20 hours a week. Usually 1 hour a day for 30 days.

▪ If looking for long-term services, consider Medicaid. Medicare is short term, just for skilled care or nursing. They teach beneficiaries how to care for themselves and then they are out.

▪ Those hours are “typically only authorized under Medicaid.” It mostly would not be offered under Medicare.

Calls to 1-800-Medicare

6 calls were made to 1-800-Medicare asking about home care coverage for an individual with one of the three diagnoses. The telephone operators read from a script stating Medicare covered 1 to 8 hours of home health aide a day and up to 35 hours a week, on a case by case basis. This would last for a 60 day episode of care, but could be repeated with another physician certification.

Calls to Medicare Advantage Plans

13 calls were made to Medicare Advantage plans servicing the previously listed areas. 10 of the 13 telephone operators or Plan websites stated home health aides would be covered no more than 8 hours a day or 35 hours a week. The other 3 operators and websites did not provide information on the number of hours covered.

Conclusion

Medicare and Medicare Advantage plans are stating that beneficiaries are able to receive up to 8 hours a day and 35 hours a week of home health coverage, however this is not occurring in practice at the home health agencies. Only 8.1% of the home health agencies telephoned were willing to offer, and stated Medicare would cover, 20 hours a week of home health aide services. Although many home health agencies said the number of hours they would provide depended on their assessment of the individual, 52.1% offered 3 or less visits a week, despite contradicting doctor’s orders. Some home health agencies indicated staffing concerns to meet the requested home health aide hours, but many stated a lack of Medicare coverage was the reason for the limited amount of visits a week.

ATTACHMENT C

MEDICARE HOME HEALTH LAW AND CITATIONS

____________________________

  • Necessary and reasonable care can be covered so long as coverage criteria are met:  Benefits can continue with no duration of time limit so long as Medicare coverage criteria are met.

42 USC §1861(m); 42 CFR §409.48(a)and (b)

Medicare Benefit Policy Manual (MBPM), Chapter 7, §70.1

  • Plan of care requirements must be followed:  The home health agency must be acting upon a plan of care, and a physician certification or recertification, for home health services to be covered. The orders on the plan of care must indicate the type of services to be provided to the patient, both with respect to the professional who will provide them and the nature of the individual services, as well as the frequency of the services. If a range of visits is ordered, the upper limit of the range is considered the specific frequency. Any changes in the plan of care must be signed and dated by a physician.

42 CFR §409.43(b)

MBPM, Chapter 7, §30.2.1, §30.2.2, §30.2.4(B)

  • Intermittent Skilled Nursing:  Nursing that is provided less than daily (seven days per week)  or daily, for up to eight hours per day, for periods of 21 days or less (with extensions possible in exceptional circumstances, when the continued need for daily care will end in a predictable period of  time.) Nursing and Home Health Aide services combined can be covered up to 28-35 hours per week.

42 USC §1395x(m), 42 USC §1395f(a)(2), 42 USC §1395n(a)(2)(A)

42 CFR §409.42(c)(1)

MBPM, Chapter 7, §40 to §40.1.3

Skilled nursing includes care to maintain an individual’s condition or slow decline. MBPM, Chapter 7, §20.1.2, §40.1, §40.1.1

  • Part-Time Skilled Nursing:  Nursing that is provided less than daily (seven days per week) and less than 8 hours per day. (Nursing can be covered up to 28-35 hours per week combined with Home Health Aide services.)

42 USC §1395x(m), 42 USC §1395f(a)(2), 42 USC §1395n(a)(2)(A)

42 CFR §409.42(c)(1)

MBPM, Chapter 7, §40 to §40.3, §50.1, §50.7

This includes skilled nursing to maintain an individual’s condition or slow decline.  MBPM, Chapter 7, §20.1.2, §40.1, §40.1.1

  • Home Health Aides:  Personal care services for less than eight hours each day and less than seven days per week (up to 28-35 hours combined with Skilled Nursing services)

42 USC §1395x(m); 42 CFR §409.45(b)

MBPM, Chapter 7, §50.1, §50.2

  • Physical Therapy (PT):  Skilled therapy by or under supervision of a skilled physical therapist

42 USC §1395x(m); 42 CFR §409.42(c)(2)

MBPM, Chapter 7, §40.2 to §40.2.2, §50.1

This includes therapy to maintain an individual’s function or slow decline.

MBPM, Chapter 7, §40.2 to §40.2.2E

  • Speech Language Pathology (SLP) (Also referred to as Speech Therapy (ST))Skilled SLP by or under supervision of a skilled speech language pathologist.

42 USC §1395x(m); 42 CFR §409.42 (c)(4)

MBPM, Chapter 7, §40.2, §40.2.1, §40.2.3, §50.1

This includes services to maintain an individual’s condition or slow decline.

MBPM, Chapter 7, §40.2, §40.2.1, §40.2.1(d)(2) and (3)

  • Occupational Therapy (OT): Skilled OT by or under supervision of a skilled occupational therapist.

42 USC §1395x(m); 42 CFR §409.42(c)(4) and §409.45(d)

MBPM, Chapter 7, §40.2, §40.2.1, §40.2.4 to 40.2.4.2, §50.1

This includes therapy to maintain an individual’s condition or slow decline

MBPM, Chapter 7, §40.2, §40.2.1, §40.2.1(d)(2) and (3)

  • Medical Social Services: To resolve possible social/emotional impediments to effective treatment or rate of recovery.

42 USC §1395x(m); 42 CFR §409.45(c)  MBPM, Chapter 7, §50.3

  • Medical Supplies: Items that are essential to enable home health agency personnel to effectively carry out ordered care.

42 USC §1395x(m); 42 CFR §409.45(f)

MBPM, Chapter 7, §50.4.1, §50.4.1.1, §50.4.1.2, §50.4.1.3

  • Durable Medical Equipment (DME):  As in other situations, DME furnished by a home health agency is subject to a 20% coinsurance.
  • 42 USC §1395x(m); 42 CFR §409.45(e)

MBPM, Chapter 7, §50.4.2

  • Services Included in the Physician’s Plan of Care But Not Available from the Home Health Agency:  Home health agencies that are not able to provide all the Medicare-coverable care included in the patient’s Plan of Care, are required to make arrangements with other providers to provide the care.

MBPM, Chapter 7, §10.11, §40

  • Improvement is Not Required to Qualify for Coverage
  • “Coverage of skilled nursing care or therapy to perform a maintenance program does not turn on the presence or absence of a patient’s potential for improvement from the nursing care or therapy, but rather on the patient’s need for skilled care.  Skilled care may be necessary to improve a patient’s condition, to maintain the patient’s condition, or to prevent or slow deterioration of the patient’s condition.

MBPM, Chapter 7, §20.1.2

  • “Skilled nursing services are covered where such skilled nursing services are necessary to maintain the patient’s current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided…”

MBPM, Chapter 7, §40.1.1

See, Jimmo v. Sebelius, No. 11-cv-17 (D. VT., 2013, 2016).

  • Comply with the Medicare Conditions of Participation or be subject to sanctions or termination from Medicare:  The Centers for Medicare & Medicaid Services (CMS) may sanction or terminate a HHA when a survey reveals that the HHA has been noncompliant with one or more Conditions of Participation.

42 USC §1395bbb(e); 42 CFR §488.810(b)

(Note: Surveys are to be conducted periodically, following changes in HHA information, or when a significant number of complaints against an HHA are reported to CMS, the State, or any other appropriate federal, state, or local agency.

42 USC §1395bbb(c)(2)(A) and (B); 42 CFR §488.730)

  • Administer drugs and treatments only as the physician has ordered.

42 CFR §484.18(c)

  • Not discriminate against an individual due to his/her Medicare status.

42 CFR §489.53(a)(2)

Individuals who meet Medicare Home Health Criteria Have a Right To:

  • Be fully informed of care and treatment:  Individuals have the right to be fully informed in advance of care and treatment, changes and to care and treatment, and to participate in planning or changes of care and treatment.

42 USC §1395bbb(a)(1)(A); 42 CFR §484.10(c)

  • Be fully informed of Medicare coverage and payment:  Individuals have the right to be fully informed of items and services furnished under Medicare and of the coverage for such items and services.

42 USC §1395bbb(a)(1)(E); 42 CFR §484.10(e)

  • Voice grievances against the home health agency (HHA) regarding treatment or care:  Individuals may voice grievances for treatment or care that is (or fails to be) furnished.  42 USC §1395bbb(a)(1)(B); 42 CFR §484.10(b)(4)

SOCIAL SECURITY ACT

42 USC 1861(m)

MEDICARE HOME HEALTH SERVICES

1861 (m) The term “home health services” means the following items and services furnished to an individual, who is under the care of a physician, by a home health agency or by others under arrangements with them made by such agency, under a plan (for furnishing such items and services to such individual) established and periodically reviewed by a physician, which items and services are, except as provided in paragraph (7), provided on a visiting basis in a place of residence used as such individual’s home—Anchor

(1) part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse;

(2) physical or occupational therapy or speech-language pathology services;

(3) medical social services under the direction of a physician;

(4) to the extent permitted in regulations, part-time or intermittent services of a home health aide who has successfully completed a training program approved by the Secretary;

(5) medical supplies (including catheters, catheter supplies, ostomy bags, and supplies related to ostomy care, and a covered osteoporosis drug (as defined in subsection (kk)), but excluding other drugs and biologicals) and durable medical equipment while under such a plan;

(6) in the case of a home health agency which is affiliated or under common control with a hospital, medical services provided by an intern or resident-in-training of such hospital, under a teaching program of such hospital approved as provided in the last sentence of subsection (b); and

(7) any of the foregoing items and services which are provided on an outpatient basis, under arrangements made by the home health agency, at a hospital or skilled nursing facility, or at a rehabilitation center which meets such standards as may be prescribed in regulations, and—

(A) the furnishing of which involves the use of equipment of such a nature that the items and services cannot readily be made available to the individual in such place of residence, or

(B) which are furnished at such facility while he is there to receive any such item or service described in clause (A), but not including transportation of the individual in connection with any such item or service; excluding, however, any item or service if it would not be included under subsection (b) if furnished to an inpatient of a hospital. For purposes of paragraphs (1) and (4), the term “part–time or intermittent services” means skilled nursing and home health aide services furnished any number of days per week as long as they are furnished (combined) less than 8 hours each day and 28 or fewer hours each week (or, subject to review on a case-by-case basis as to the need for care, less than 8 hours each day and 35 or fewer hours per week). For purposes of sections 1814(a)(2)(C) and 1835(a)(2)(A), “intermittent” means skilled nursing care that is either provided or needed on fewer than 7 days each week, or less than 8 hours of each day for periods of 21 days or less (with extensions in exceptional circumstances when the need for additional care is finite and predictable).

ATTACHMENT E

EXAMPLES OF INCORRECT OR MISLEADING STATEMENTS

ABOUT MEDICARE HOME HEALTH AIDE COVERAGE

ON THE MEDICARE.GOV WEBSITE

  1. Home health aides typically provide help with basic tasks such as bathing, using the bathroom, and dressing and are not usually covered by Medicare.

From: Ask Medicare, Questions and Answers About Medicare for Caregivers https://www.medicare.gov/files/ask-medicare-questions-and-answers.pdf

  1. Medicare doesn’t pay for personal care.

From: Your Medicare Coverage https://www.medicare.gov/coverage/home-health-services.html#2778 Personal care is defined in subtext as “care given by home health aides, like bathing, dressing and using the bathroom, when this is the only care you need.” (Note – true but misleading and difficult to find)

  1. Home health agencies are required to give you an ABN before you get any items or services that Medicare may not pay for because of any of these reasons…custodial care (Note: subtext goes on to define custodial care as personal care).

What if the home health agency is reducing or stopping my services? https://www.medicare.gov/claims-and-appeals/medicare-rights/hhccn/home-health-change-of-care-notice.html Custodial care is defined in subtext as “non-skilled personal care like help with activities of daily living like bathing, dressing, eating, getting in or out of a bed or chair, moving around, and using the bathroom. It may also include the kind of health-related care that most people do themselves, like using eye drops. In most cases Medicare doesn’t pay for custodial care.”

  1. The goal of home health care is to treat an illness or injury. Home health care helps you get better, regain your independence, and become as self-sufficient as possible.

What’s Home Health Care? https://www.medicare.gov/what-medicare-covers/home-health-care/home-health-care-what-is-it-what-to-expect.html

ATTACHMENT F

SOCIAL SECURITY PROGRAM OPERATION MANUAL SYSTEM (POMS)

HI 00601.400 Services of a Home Health Aide

The primary function of a home health aide is the personal care of a patient under the supervision of a registered professional nurse and, if appropriate, a physical, speech, or occupational therapist. The assignment of a home health aide to a particular case must be made in accordance with a written plan of treatment established by a physician which indicates the patient’s need for personal care services. The specific personal care services to be provided by the home health aide must be determined by a registered professional nurse and not by the home health aide.

Personal care duties which may be performed by a home health aide include assistance in the activities of daily living, e.g., helping the patient to bathe, to get in and out of bed, to care for his hair and teeth, to exercise, and to take medications specifically ordered by a physician which are ordinarily self-administered, and retraining the patient in necessary self-help skills. Covered home health aide services usually last 1-3 hours per visit and generally are provided 2 or 3 times a week.

While the primary need of the patient for home health aide services furnished in the course of a particular visit may be for personal care services furnished by the aide, the home health aide may also perform certain household services which are designated to the home health aide in order to prevent or postpone the patient’s institutionalization.

These services may include keeping a safe environment in areas of the home used by the patient, e.g., changing the bed, light cleaning, rearrangements to assure that the beneficiary can safely reach necessary supplies of medication, laundering essential to the comfort and cleanliness of the patient, etc., seeing to it that the nutritional needs (which may include the purchase of food and assistance in the preparation of meals) of the patient are met, and washing utensils used in the course of the visit. If these household services are incidental and do not substantially increase the time spent by the home health aide, the cost of the entire visit would be reimbursable.

Housekeeping services would materially increase the amount of time required to be spent by the home health aide to make the visit above the amount of time necessitated by care for the patient are not reimbursable. Where another member of the household is an equally aged and feeble or ill person, e.g., an aged spouse or parent of the beneficiary, certain services performed by the home health aide may be advantageous to both members of the household but would nevertheless be reimbursable if the amount of time spent by the aide is not materially increased in order to serve the non-beneficiary member.

HI 00601.440 Part Time or Intermittent Services

Part-time or intermittent services of professional personnel and home health aides is usually service for a few hours a day several times a week. Occasionally, more service; i.e., eight hours, may be provided for a limited period when the physician recommends and, when because of unusual circumstances, neither the alternative of part-time care nor institutionalization is feasible.

Services of professional staff usually are provided less frequently and for shorter periods of time than are the services of home health aides. For physical, speech, and occupational therapists and medical social workers, visit ordinarily should not exceed one hour.

Home health aide visits usually last 1-3 hours a day and generally are provided 2 or 3 times a week.

For the very few ill patients who need extensive personal care services in addition to skilled services, Medicare will pay for part-time medically reasonable and necessary aide services 7 days a week for a short period of time (2-3 weeks). There may also be a few cases involving unusual circumstances where a patient’s personal care needs extend beyond 3 weeks. For example, the patient’s condition is terminal; he or she has suffered a relapse which, while requiring more intensive care, either does not necessitate institutionalization or institutionalization cannot immediately be arranged.

MEDICARE BENEFIT POLICY MANUAL, CHAPTER 7

§40 – Covered Services Under a Qualifying Home Health Plan of Care (Rev. 1, 10-01-03) A3-3118, HHA-205

Section 1861(m) of the Act governs the Medicare home health services that may be provided to eligible beneficiaries by or under arrangements made by a participating home health agency (HHA). Section 1861(m) describes home health services as…….

……..The term “part-time or intermittent” for purposes of coverage under §1861(m) of the Act means skilled nursing and home health aide services furnished any number of days per week as long as they are furnished (combined) less than 8 hours each day and 28 or fewer hours each week (or, subject to review on a case-by-case basis as to the need for care, less than 8 hours each day and 35 or fewer hours per week). See §50.7.

For any home health services to be covered by Medicare, the patient must meet the qualifying criteria as specified in §30, including having a need for skilled nursing care on an intermittent basis, physical therapy, speech-language pathology services, or a continuing need for occupational therapy as defined in this section.