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This is Part Two of a Ten-Part CMA Issue Brief Series to examine, and inform work to resolve, the growing crisis in access to Medicare home health coverage and necessary care.  We invite you to follow this Series and provide Medicare home health stories at http://www.medicareadvocacy.org/submit-your-home-health-access-story/.

CMA Issue Brief Series: Medicare Home Health Care Crisis

  1. Overview – The Crisis in Medicare Home Health Coverage and Access to Care
  2. Medicare Home Health Coverage, Legally Defined
  3. Medicare Coverage Is Based On a Need For Skilled Care – Improvement Is Not Required
  4. Misleading and Inaccurate CMS Home Care Publications
  5. The Home Care Crisis: An Elder Justice Issue
  6. Beneficiary Protections Are Lacking In Home Health Provider Conditions Of Participation
  7. Barriers to Home Care Created by CMS Payment, Quality Measurement, and Fraud Investigation Systems
  8. Proposed CMS Systems Will Worsen the Home Care Crisis
  9. A Further Examination of the Home Care Crisis: Published Articles and Statistical Trends
  10. Strategic Plans to Address and Resolve the Medicare Home Care Crisis

Medicare coverage for home health care is available to people who have a normal inability to leave home (aka “homebound”) and require skilled nursing and/or therapies. Six disciplines are coverable (Skilled Nursing, Physical Therapy, Occupational Therapy, Speech Language Pathology, Home Health Aide and Medical Social Services). Legally, there are no limitations to the duration or amount of covered services, except that skilled nursing and home health aide services are generally limited to a combined 35 hours per week. The beneficiary must meet certain qualifying criteria to obtain these benefits. Qualifying criteria will be discussed in Part Three of this CMA Issue Brief Series.

Medicare home health coverage is often misunderstood and misstated. Thus, we are providing key provisions of the relevant law, regulations and policies to inform home health advocacy and decision-making.

MEDICARE HOME HEALTH CARE – LAW AND CITATIONS

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  • 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 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)

Conclusion

The Medicare home health benefit is often misunderstood and misrepresented, including by the Centers for Medicare & Medicaid Services (CMS) and home health care providers. This misinformation exacerbates the crisis in access to coverage. Beneficiaries and their advocates should know what is actually available under the Medicare law in order to fully advocate for themselves and others.

Future topics in this CMA Issue Brief Series will examine how misinformation is one of the key reasons beneficiaries are losing access to their lawful benefits, and to necessary care.

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