The Biggest Regulatory, Policy ‘Wins’ for Home-Based Care in Recent Memory

Trade groups, providers and individuals have always advocated on behalf of the home health and home care sectors. In doing so, stakeholders have confronted both wins and losses along the way.

Some of those milestones are old. Some of them — especially with the onset of the ground-shaking COVID-19 pandemic last year — are fresh on everybody’s minds. Amid the highs and lows, the industry has learned together to enable the shift of health care into the home.

“What we’re seeing today — that we didn’t see years ago — is the industry continuing to work on these things collectively before making any decisions about what the advocacy approach is going to be,” Angelo Spinola, the co-chair of the home health and home care industry group at the law firm Polsinelli, told Home Health Care News. “I believe that’s here to stay, and I think that’s the biggest win — that the industry is working together in a way that I hadn’t seen before in my career.”

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Not many fight for legislative and regulatory causes as much as the National Association for Home Care & Hospice (NAHC). Over the last dozen years or so, an annual fight for fair reimbursement has taken place.

The Washington, D.C.-based NAHC is a nonprofit organization that represents about 33,000 home care and hospice organizations across the country.

“Since the Prospective Payment System (PPS) model came into being in 2000, there have been annual battles relative to reimbursement rates,” NAHC President William A. Dombi told HHCN. “And while we can’t say we won 100% of them, … typically we succeeded in getting proposed payment rate cuts reduced quite materially.”

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Even as administration-change-related disruptions hurt certain health care providers over the years, the home-based care community was able to stay afloat.

Stability was achieved, at least for home health providers, through advocacy efforts.

“There aren’t many sectors of Medicare providers that have the margins that Medicare home health agencies have, and I’m not so sure that’s the litmus test to use,” Dombi said. “But given that those margins are used not to just fatten people’s wallets, but instead used to subsidize shortcomings of Medicaid programs and Medicare Advantage payments, it really is a success in getting the level of reimbursement we’re getting from the Medicare program.”

PPS did not lead directly to the Patient-Driven Groupings Model (PDGM).

Before PDGM was put into place, another payment model threatened the stability of the industry: the Home Health Grouping Model (HHGM). Its failure to launch marked another victory for the home health care industry.

“There was an effort by CMS to accelerate a new payment model in home health, and it was stopped,” Dombi said. “It was not a good design to begin with.”

Besides significant behavioral adjustment issues, the timing of the model’s introduction would just not have been fair to providers, he added.

“So we garnered congressional support, and there didn’t ultimately need to be legislation introduced or passed,” Dombi said. “It was the influence of Congress and our own advocacy that put CMS into a rethinking mode, … and we would put it down on the victory list without a doubt.”

Once PDGM was finalized, there were still similar behavioral adjustments that NAHC, other associations and providers took issue with.

But today’s behavioral adjustment of 4.36% could have been much worse.

“It was originally supposed to be around 8.4%,” Spinola said. “I know the Partnership for Quality Home Healthcare and other associations like NAHC really focused on getting that down. There was this whole concept of anticipating that habits would change, and other [assumptions that came with that]. The argument against it was, ‘Wait a minute, that hasn’t happened, and that is completely predictive in nature.’”

Pandemic-era wins

Due to an unprecedented legislative period and specific health-related aspects of the COVID-19 crisis, home-based care also experienced some wins during the last two years.

But the advocacy for those issues started long before the public health emergency.

For one, CMS changed what it meant to be “homebound,” relaxing rules around the definition to include seniors who needed to stay at home to avoid the risk of contracting the virus.

Additionally, non-physician practitioners were authorized to certify Medicare home health for the first time.

“When the first stimulus package came out, it was a real pleasure to see that done. It was a piece of legislation that we’d been working on since 2007,” Dombi said. “That had been not just a long battle to get there, but also one that was highly valued throughout home health care, because so many of the primary care practitioners were no longer physicians, and it just was a big and senseless burden.”

Even on the telehealth front, significant strides were made. Despite no concrete reimbursement structure for home health providers, they were able to use telehealth in ways not possible in pre-pandemic times.

CMS used to not consider telehealth visits as visits at all. Now, if providers reach the Low-Utilization Payment Adjustment (LUPA) threshold, they’re able to utilize remote visits as they please.

“CMS’ opposition to telehealth in home health was well known, but they did end up convinced to allow providers to use telehealth, albeit without reimbursement,” Dombi said. “So, we complain that we don’t get reimbursed for telehealth, … but CMS at least did not suggest a reduction in reimbursement because you weren’t carrying the cost of an in-person visit for the full episode.”

Full telehealth reimbursement is obviously a win that home health providers and NAHC are hoping will be coming down the road.

But for now, NAHC’s No. 1 priority remains the Choose Home Care Act of 2021.

Broadly, the bipartisan legislation would create an add-on payment for home health providers taking care of patients that would otherwise be eligible for nursing home-level care after being admitted to the hospital.

“The ability to expand your footprint is so, so important,” Dombi said. “Meaning, instead of being limited to short-term, post-acute kind of services, you’re able to substitute for other levels of care.”

Hidden victories

The policy wins in home-based care haven’t only come in successful legislation, however. They’ve also been won when certain legislation wasn’t passed.

Being a lawyer, Spinola is all too aware of the battles that have been fought — sometimes publicly and sometimes behind the scenes — to stymie policy moves that could have been hurtful to home-based care.

“A lot of times when we’re involved is when we’re opposing something,” Spinola said. “And I think that should be part of the equation — what we’ve prevented — and not just what has happened. Because there have been some efforts that have not occurred, that otherwise, I think would have.”

The rejection of HHGM is one example. But there are others, too.

“Another major one that I think has been a real success in opposing is all the predictive scheduling rules,” Spinola said.

Put simply, predictive scheduling laws would give workers premium payments for their schedules being changed within 14 to 21 days of a work date, scaling upwards the closer to the date that the change is made.

Given the nature of both home health and home care, that would be crushing legislation for both sectors.

“That just doesn’t work in home care, you can’t do that because the schedules are constantly changing,” Spinola said. “Clients are coming online and they need services right away, or they cancel, and it’s not the employers fault or decision. So what we’ve been able to do with all those predictive scheduling laws is get home care excluded. The laws often passed, but with that exclusion. So that’s a big one.”

Along similar lines is Workers’ Domestic Bill of Rights legislation. Although it has not yet become federal law, it will likely resurface.

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