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The Home Care Crisis: An Elder Justice Issue

Posted on: September 11th, 2017
Posted by:  Jennifer A. Johnson

The Centers for Medicare & Medicaid Services (“CMS”) rules and policies are resulting in neglected care and endangered safety for some Medicare beneficiaries under a Medicare program that promises to cover their home health care.

While Medicare home health coverage laws apply equally to all individuals, equitable application of coverage laws has been impeded by administrative payment rules and quality measure incentives that favor beneficiaries who have short-term care needs and disfavor those with long-term, chronic care needs. This has left those with long-term, chronic care needs with limited access to Medicare-certified home health agencies and services.

A Study of Two Medicare Beneficiaries
Mr. B and Ms. K both meet the Medicare home health coverage criteria.

  1. Mr. B has Parkinson’s Disease and needs long term home care. His plan of care, ordered by his doctor, includes: Nursing for 1 hour/week; Physical Therapy for 3 hours/week; Occupational Therapy for 2 hours/month; and a Home Health Aide for 28 hours/week.
  2. Ms. K had a knee replacement and needs 6 weeks of home care to recover complete independent functioning. Her plan of care, ordered by her doctor, includes: Physical Therapy for 3 hours/week for 6 weeks; and a Home Health Aide to assist with bathing for 5 hours/week.
Mr. B made an exhaustive search of Medicare certified home health agencies that serve his home area. Most would not even evaluate him for care. One agency was willing to work with him, but even that agency said they could only provide him with limited services. Thus, instead of the hour of skilled nursing a week he needs, he receives an hour a month. Instead of 3 hours of physical therapy a week, he receives an hour a week. Instead of 2 hours of occupational therapy a month, he receives 1 hour a month. Instead of 28 hours of home health aide a week, he receives 3 baths a week. The doctor’s order and plan of care had to be adjusted to reflect the limited services Mr. B was actually able to obtain.

Ms. K easily secured a home health agency to provide her full plan of care.
Home health agencies can choose whom to serve, and when to discharge them, under the Medicare Conditions of Participation. CMS payment models and quality measure ratings incentivize home health agencies to serve beneficiaries who only need short term care to get better. Beneficiaries who need long term care are not even accounted for in CMS’ measurements. Individuals whose care is not “measured” by a home health agency will likely not receive care. CMS administrative rules and policies result in the following for Mr. B and Ms. K:

  • Home health agencies want to provide care to Ms. K, not Mr. B.
  • Home health agencies will likely receive a higher profit margin for Ms. K and may lose money caring for Mr. B.
  • Home health agencies will receive a positive quality rating for Ms. K and a negative quality rating for Mr. B.
  • Home health agencies will be rewarded with value-based incentive payments for Ms. K and be penalized for serving Mr. B.
  • Long term care for Mr. B is more likely to trigger an agency fraud audit than short term care for Ms. K.
Mr. B, and other Medicare beneficiaries with long term and chronic care needs are frequently unable to obtain the Medicare coverage for which they qualify under the law. If they are fortunate enough to find any home health agency to serve them, they are often offered significantly diminished services – likely a fraction of the covered care for which they qualify. Mr. B’s inability to obtain the care he needs, and the Medicare coverage for which he qualifies, jeopardizes his health and well-being.

Elder and disability rights organizations are urging CMS to review this issue. They contend that Medicare home health coverage laws are adequate to keep many people in their homes with the care they need, and that it is the CMS home health payment rules and policies that create a bias toward serving individuals with short-term needs and neglecting care for people with long term, chronic care needs.

According to advocates, many of the most vulnerable Medicare beneficiaries are at risk of neglect and abuse due to their struggle to obtaining appropriate home health care. Some advocates are concerned that the newly proposed home health rules, published in the Federal Register on July 28, 2017, will greatly exacerbate the current inequities, further jeopardizing access to care for individuals like Mr. B.

 


 
Our firm is dedicated to helping seniors and their loved ones work through issues and implement sound legal planning to address them. If we can help in any way, please don’t hesitate to contact our office at (630) 221-1755.
 

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