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This is Part Four of a ten-part CMA Issue Brief Series examining the growing crisis in access to Medicare home health coverage and necessary care – and outlining the Center for Medicare Advocacy’s work to address these issues. We invite you to follow this Issue Brief Series and submit Medicare home health stories to the Center 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 for Home Care Is Based On a Need For Skilled Care – Improvement Is Not Required
  4. Misleading and Inaccurate CMS Medicare Home Health 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

Misleading and Inaccurate CMS Medicare Home Health Publications

Summary: Medicare home health coverage law is clear.[1] While the application of individual case facts to law is always open to interpretation, Medicare home health coverage law is not overly complicated. But the Centers for Medicare & Medicaid Services (CMS), the agency responsible for administering Medicare, continues to publish and communicate misleading and inaccurate statements about Medicare home health coverage. In turn, these actions by CMS perpetuate misinformation and confusion about home health coverage laws with the following:

  • Medicare contractors who are responsible for payment of Medicare claims;
  • Medicare certified home health agencies that deliver home health care services; and
  • Beneficiaries who need accurate information about the benefits they may qualify for under law.

In Part 4 of our Medicare home health Issue Brief Series, CMA discusses the Medicare home health coverage laws, the definition of home health aide services, and statements made by CMS that miscommunicate coverage.

I. Medicare Home Health Care Coverage Laws

All Medicare beneficiaries have a right to know and understand their legally covered home health care benefits. The following is a list of benefits and legal citations to help beneficiaries, home health agencies, and Medicare contractors know where in the law to confirm coverage for services.[2]

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 and Receive Home Health Care Services 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)

II. Home Health Aide Coverage Defined (Includes, But is More Than Bathing!)

A. 42 CFR §409.45(b) defines Home Health Aide Services as follows:

Home health aide services. To be covered, home health aide services must meet each of the following requirements:

(1) The reason for the visits by the home health aide must be to provide hands-on personal care to the beneficiary or services that are needed to maintain the beneficiary's health or to facilitate treatment of the beneficiary's illness or injury. The physician's order must indicate the frequency of the home health aide services required by the beneficiary. These services may include but are not limited to:

(i) Personal care services such as bathing, dressing, grooming, caring for hair, nail and oral hygiene that are needed to facilitate treatment or to prevent deterioration of the beneficiary's health, changing the bed linens of an incontinent beneficiary, shaving, deodorant application, skin care with lotions and/or powder, foot care, ear care, feeding, assistance with elimination (including enemas unless the skills of a licensed nurse are required due to the beneficiary's condition, routine catheter care, and routine colostomy care), assistance with ambulation, changing position in bed, and assistance with transfers.

(ii) Simple dressing changes that do not require the skills of a licensed nurse.

(iii) Assistance with medications that are ordinarily self-administered and that do not require the skills of a licensed nurse to be provided safely and effectively.

(iv) Assistance with activities that are directly supportive of skilled therapy services but do not require the skills of a therapist to be safely and effectively performed, such as routine maintenance exercises and repetitive practice of functional communication skills to support speech-language pathology services.

(v) Routine care of prosthetic and orthotic devices.

(2) The services to be provided by the home health aide must be –

(i) Ordered by a physician in the plan of care; and

(ii) Provided by the home health aide on a part-time or intermittent basis.

(3) The services provided by the home health aide must be reasonable and necessary. To be considered reasonable and necessary, the services must –

(i) Meet the requirement for home health aide services in paragraph (b)(1) of this section;

(ii) Be of a type the beneficiary cannot perform for himself or herself; and

(iii) Be of a type that there is no able or willing caregiver to provide, or, if there is a potential caregiver, the beneficiary is unwilling to use the services of that individual.

(4) The home health aide also may perform services incidental to a visit that was for the provision of care as described in paragraphs (b)(3)(i) through (iii) of this section. For example, these incidental services may include changing bed linens, personal laundry, or preparing a light meal.

B. Medicare Benefit Policy Manual, Chapter 7, Section 40 – Covered Services Under a Qualifying Home Health Plan of Care (Rev. 1, 10-01-03) A3-3118, HHA-205, Allows Medicare Coverage of Home Health Aide as Follows:

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.

III. Myths & Facts: CMS Provides Incorrect and Misleading Coverage Myths on Medicare.gov,  the Social Security Program Operating Manual System (POMS)(“owned” by Medicare, per Social Security); and the newly published 2017 Medicare & Home Health Care Handbook.

Medicare coverage law specifically includes hands-on personal care by a home health aide. Why then does CMS perpetuate the following myths of non-coverage?

A. Myths on Medicare.gov:

  1. MYTH:  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

FACT: These are the very tasks that usually ARE covered by Medicare. 42 CFR §409.45(b).

  1. MYTH:  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)

FACT: Medicare DOES pay for personal hands-on care. 42 CFR §409.45(b).

  1. MYTH:  Home health agencies are required to give you an ABN (Advanced Beneficiary Notice) 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.”

FACT: Medicare DOES pay for these types of personal hands-on care as dependent services when a beneficiary is also receiving skilled services. 42 CFR §409.45(a) and (b).

  1. MYTH:  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

FACT: This is an incomplete and misleading statement. Sometimes a person has an illness or an injury and they will NOT get better, but they need skilled and unskilled services to help them maintain as much function as possible and prevent or slow deterioration. MBPM, Chapter 7, §20.1.2, §40.1, §40.1.1 (Nursing); MBPM, Chapter 7, §40.2 to §40.2.2E (Physical Therapy); MBPM, Chapter 7, §40.2, §40.2.1, §40.2.1(d)(2) and (3) (Speech Language Pathology); MBPM, Chapter 7, §40.2, §40.2.1, §40.2.1(d)(2) and (3) (Occupational Therapy).

B. Myths on the Social Security Program Operating Manual System

  1. MYTH (highlighted in yellow) from the Social Security Program Operating Manual System (POMS) HI 00601.400 Services of a Home Health Aide (MYTH is highlighted in yellow)

…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.

FACT: Medicare home health aides may be covered for 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

  1. MYTH (highlighted in yellow) from the Social Security Program Operating Manual System (POMS) 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. 

FACT: This Myth incorrectly confuses the law of daily care for 21 days with the law of ongoing intermittent personal hands on care as a service that is dependent upon a beneficiary receiving skilled services with no time limit duration. 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

C. Myths in the 2017 CMS Medicare & Home Health Care Handbook

Unfortunately, the 2017 revised handbook on Medicare Home Health Care perpetuates the myths as described above on Medicare.gov and in the POMS

FACT: CMA has proposed corrections to CMS to clarify home health care benefits in the new handbook. Those corrections may be seen at http://www.medicareadvocacy.org/wp-content/uploads/2017/06/CMA-Corrections-to-CMS-HH-Info.pdf.

Conclusion

The Medicare Home Health coverage law is clear. Medicare beneficiaries have a right to know what benefits the law allows and how to qualify for those benefits. CMS should correct its misleading and inaccurate publicized statements to assist Medicare payment contractors, home health agencies, and beneficiaries understand the legally authorized Medicare home health coverage.

 


[1] 42 U.S.C. 1861(m)
[2] United States Code = USC; CFR = Code of Federal Regulations; MBPM = Medicare Benefit Policy Manual

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