PRINTER FRIENDLY
 

The state of Missouri requires Medicaid beneficiaries to be "confined to the home" in order to receive home health services provided under its Medicaid program.  While this so-called "homebound" rule has been required by statute for home health services in Medicare since the beginning of the program, the Medicaid statute has never had such a requirement.  In fact, the absence of a "homebound" requirement in Medicaid has been an important feature of that program for those dually-eligible for Medicare and Medicaid who may be denied home health services under Medicare for failure to meet the homebound standard.

The Centers for Medicare & Medicaid Services (CMS) has informed the Director of Missouri's Department of Social Services that the state is out of compliance with Medicaid law and that it will be sanctioned by the withholding of a portion of the federal share of payments until it comes into compliance.[1]

This Alert focuses on the homebound issue, on CMS's legal rationale for sanctioning Missouri and on the important role of the advocacy community in bringing pressure to bear on Missouri to change its policy and on CMS to press the state to act.

Background

The Medicare homebound requirement has been a barrier to access to Medicare home health services.  Over the years, the law and CMS' interpretation of it have been softened to clarify that a person need not lose home health services merely because s/he left home for short periods of time.  Under the current standard, if leaving home requires considerable and taxing effort by the individual, s/he may still be considered "homebound."  Also, absences to receive healthcare, to participate in therapeutic, psychosocial or medical treatment in an adult day-care program, or absences that are infrequent or of short duration do not disqualify the individual.[2]  Even with these "liberalizations" of earlier definitions, beneficiaries are often erroneously denied services because they are not homebound.

Federal Medicaid law has never required homebound status for recipients of home health services, but advocates have reported over the years that some states have required it.  After the 1999 Supreme Court decision in Olmstead v. L.C. & E.W.,[3] interpreting the Americans with Disabilities Act, CMS, then the Health Care Financing Administration, issued a series of letters to States informing them how the Olmstead decision affected their Medicaid programs.  One such letter, referred to as Olmstead Update #3, specifically said that a homebound requirement for home health services violates two regulations governing the Medicaid program.[4]

The CMS Compliance Action

Analysis from Olmstead Update #3 provides the legal basis for CMS's current action imposing sanctions on Missouri until it amends its State Medicaid Plan.  The CMS letter notes that, in Medicaid, the home health benefit is a required benefit for all those who qualify for nursing facility services under certain categories of eligibility.[5] CMS finds that the Missouri provision violates a statutory and regulatory requirement that states provide a comparable amount, duration and scope of benefits to all individuals eligible for the standard benefit package and that services be sufficient to reasonably achieve their purpose.[6]  Moreover, services cannot be denied or reduced solely because of a diagnosis, type of illness, or condition.[7]  Applying a homebound standard to those otherwise eligible for home health services renders the services not comparable between those homebound and those not homebound, and the services are denied because of an individual's condition of being homebound.

The February 26, 2010 Compliance letter reminds Missouri of the Olmstead guidance from ten years ago, and further reminds the state that CMS had directed it to change its homebound requirement in 2005.  CMS will initially withhold ten percent of the federal share of quarterly home health payments to Missouri; it will withhold an additional five percent for each quarter the State remains out of compliance.  The State is given 30 days from the date of the letter to submit a new plan, request a hearing or be subject to the sanction.  The required notice of Opportunity for a Hearing was published in the Federal Register on March 5, 2010. (75 Fed.Reg. 10289). 

Advocacy

Various advocacy organizations have been active in pressing the State to change its policy and in pressing CMS to force the State to do so.  More than a year ago, Legal Services of Eastern Missouri (LSEM) wrote a lengthy letter to the State making the legal case for why its policy violated federal law.[8]  The Disability Coalition on Healthcare Reform pressed the Governor at the same time on the same issue.  Activity heated up in the summer and fall of 2009, with another letter from Legal Services of Eastern Missouri to CMS urging action against the state.  A separate letter from the Disability Coalition on Healthcare Reform to CMS included sign-ons by twenty local, state and national organizations, including the Center for Medicare Advocacy.  In early 2010, AARP of Missouri wrote to both Cindy Mann, Director of the Center for Medicaid and State Operations, and to the Missouri Medicaid Director, urging action to change Missouri’s policy.[9]  Similarly, the Missouri Alliance for Home Care wrote to both CMS and Missouri Medicaid.[10]

Implications of CMS's Action

As noted above, the distinction between Medicare and Medicaid with respect to home health services is important to beneficiaries. As CMS noted in its Compliance letter, home health benefits are mandatory in Medicaid for anyone categorically eligible for nursing facility services and states have the option of providing them for other beneficiaries. Those who are dually eligible can often get services through Medicaid that have been denied, rightly or wrongly, by Medicare.  All who are eligible for such services, regardless of their dual eligibility status, increase their chances of remaining in the community rather than moving into an institution, if they are able to get a broad array of home health services.

Advocates should inquire as to the rules for their own State Medicaid home health benefits; if the State is requiring homebound status and seems unwilling to change its policy, advocates should first contact their Regional Office of CMS asking for a letter advising the State of its non-compliance.

The Center is very interested in the home health policies of State Medicaid programs.  Please contact attorney Patricia Nemore (pnemore @ medicareadvocacy.org) in the Center for Medicare Advocacy's Washington, DC office at (202) 293-5760 with information or questions about this subject.