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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.  

In particular, people living with long-term and debilitating conditions find themselves facing significant access problems. For example, patients have been told Medicare will only cover one to five hours per week of home health aide services, or only one bath per week, or that they aren’t homebound (because they roam outside due to dementia), or that 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.

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, if recent policies and proposed rules are fully implemented, it appears these access problems will only get worse.

Accordingly, it is important to know what Medicare home health coverage should be under the law, especially for those with long term, chronic, and debilitating conditions. 

1. Medicare Covered Home Health Services

  • Necessary and reasonable care 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

  • 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

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

3. Individuals who meet Medicare Home Health Criteria Have A Right To:

  • Be fully informed of care and treatment:  Individuals have the right to be 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 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)

4. A Home Health Agency Must:

  • 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)

  • 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)

Surveys are 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

Conclusion

​Medicare home health coverage offers the promise of allowing eligible individuals to remain at home with the care they need.  It is important for beneficiaries, advocates, providers and Medicare decision-makers to remember that coverage does not turn on the individual’s ability to improve.  Medicare coverage turns on the need for skilled personnel to provide or supervise nursing or therapy safely and effectively.  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.

Help Medicare keep its promise to help people stay at home with the care they need.

September 2016 – J. Stein

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