A class action lawsuit against the Secretary of the U.S. Department of Health and Human Services (HHS) is accusing the federal agency of failing to properly administer the Medicare home health benefit.
Although the lawsuit may come as a surprise to some, it doesn’t for Bill Dombi, the president of the National Association for Home Care & Hospice (NAHC).
“The actions of CMS and other policy changes have come home to roost,” Dombi told Home Health Care News. “We have seen a serious deterioration with the scope of services that are ultimately provided under the benefit. The deterioration has not been triggered by home health agencies or them shortchanging what they think patients need. It’s been the Medicare benefit shortchanging people.”
The plaintiffs in the case argue the home health services that are required under Medicare law have been wholly insufficient.
Medicare law authorizes coverage for up to 35 hours per week of home health aide services for personal, hands-on care.
The plaintiffs claim they have received very minimal or no such services at all.
“These beneficiaries qualify for aide services under the law, but they face a pattern of misinformation, denials and underservice by Medicare-certified home health agencies and Medicare contractors,” Judith Stein, founder and executive director of the Center for Medicare Advocacy, said in a statement. “They can’t wait any longer. Medicare must live up to its promise and ensure that older and disabled adults receive the home health aide services they require and qualify for under law.”
There have been a lot of rumblings about a lawsuit like this, Dombi said, and he figured something would have been filed in Washington, D.C., sooner.
Some of the concerns were initially brought up when the Choose Home Act started to gain traction, he said. That piece of legislation essentially would provide an add-on to the home health benefit as an alternative to skilled nursing facility stays.
Concerns were raised during those talks about the corrections that needed to be made in the base benefit of home health before adding on aspects to it, like Choose Home would.
“The lawsuit itself doesn’t surprise me,” Dombi said. “Having been on that side and involved in advocacy myself for many, many years, there’s a point where you exhaust all of your options, and you have no choice but to turn to litigation.”
The Center for Medicare Advocacy is suing on behalf of itself, the National Multiple Sclerosis Society and three individuals who all have personal stories on how they have been inadequately cared for and, in some cases, lied to about what Medicare converge they are eligible for.
“We serve many people who rely on Medicare for their health insurance but who cannot access the critical home health aide services they need for help with activities of daily living,” Karen Mariner, executive vice president of navigator experience with the National Multiple Sclerosis Society, said in a statement. “Our constituents are often incorrectly told that Medicare does not cover aide services for more than a few weeks. Our staff spends considerable time and effort working to connect people to the right solutions and this inaccurate message prevents many people with MS from receiving vital aide services that are supposed to be part of their Medicare benefits.”
There are similarities between this era of confusion and one in the late 1980s, Dombi said.
In 1987, NAHC, a class of Medicare beneficiaries, home health agencies and 13 members of Congress sued Medicare on its home health policy and claims audit practices. That led to the 28–35 hour aide services scope of benefits.
However, Dombi said that several changes in policies and practice — combined with payment rate cuts — have changed the scope of home health benefits to a point where it’s unrecognizable.
“At that point, what was happening was widespread, arbitrary, retroactive claims denials,” Dombi said. “This new generation has another major element to it. I think a lot of the outcomes are being driven by the changes in payment models and payment rates.”
The claims issues are still out there, but now they are just being compounded by the rates issue.
“They’re not giving you much money to provide care, and when you provide care, they’re second guessing whether or not it’s covered under the Medicare program,” Dombi said. “That chilling effect … is a potent reason to be afraid as well as to be unable to deliver the care.”
Looking ahead, home health agencies should understand that there is a risk agencies could be blamed for this.
Ultimately, agencies should be upfront and honest with patients about what kind of care they can provide and what kind they cannot.
“If it’s in the plan of care, they need to deliver the service,” Dombi said. “If they can’t deliver what’s in the plan of care, they should look to another home health agency that can. They’ve got to be frank with the patient and explain what’s missing and how they could fill the gap.”
The worst case scenario for home health agencies and its allies is if they are blamed for Medicare’s shortcomings, Dombi said.
The lawsuit is targeting the failure to properly oversee home health agencies. Agencies shouldn’t give oversight bodies — in this case, Medicare and HHS — ammunition to point the finger at them, Dombi said.
“I think the key thing for the agencies to watch out for is somebody trying to blame them,” Dombi said. “Home health agencies: Protect the patient, protect yourself and don’t let Medicare get away with this.”