‘Come home to enjoy’: Lawsuit filed against HHS over home health care deficiencies

A class-action lawsuit against the secretary of the US Department of Health and Human Services (HHS) accuses the federal agency of failing to properly administer Medicare home health benefits.

While the lawsuit may come as a surprise to some, it does not to Bill Dombey, president of the National Association for Home Care and Hospice (NAHC).

“CMS actions and other policy changes hit home,” Dombey told Home Health Care News. “We have seen a serious deterioration in the range of services that are ultimately provided under the benefit. The deterioration was not caused by home health agencies or by them replacing what they thought patients needed. These were people who reimbursed Medicare.”

The plaintiffs in the lawsuit allege that the home health services required under the Medicare law were grossly inadequate.

Medicare law authorizes coverage for up to 35 hours per week of home health aide services for personal, hands-on care.

Plaintiffs claim they received very minimal or no such services.

“These beneficiaries are eligible for supportive services under the law, but they face a pattern of misinformation, denials and inadequate service from Medicare-certified home health agencies and Medicare contractors,” Judith Stein, Founder and Executive Director of the Advocacy Center of Medicare, said in a statement. “They can’t wait any longer. Medicare must keep its promise and ensure that older adults and people with disabilities get the home health aide services they need and meet the law’s requirements.”

There was a lot of buzz about a lawsuit like this, Dombey said, and he figured something would have been filed in Washington, D.C. sooner.

Some of the concerns were initially raised when the Home Choice Act began to take effect, he said. This legislation would essentially provide a supplement to the home health benefit as an alternative to a stay in a skilled nursing facility.

During these conversations, concerns were raised about the adjustments that need to be made to the core benefit of home health before adding aspects to it, as Choose Home would do.

“The trial itself doesn’t surprise me,” Dombey said. “Having been on this side and involved in advocacy for many, many years, there is a point where you exhaust all your options and you have no choice but to turn to litigation.”

The Medicare Advocacy Center is suing on behalf of itself, the National Multiple Sclerosis Society and three individuals who have personal stories of being inadequately cared for and, in some cases, lied to about what Medicare converges to which they are responsible.

“We serve many people who rely on Medicare for their health insurance, but who don’t have access to the critical home health aide services they need for help with daily activities,” Karen Mariner, executive vice president of navigation experience at the National Society for Multiple sclerosis, it said in a statement. “Our constituents are often incorrectly told that Medicare does not cover assisted living services for more than a few weeks. Our staff spends considerable time and effort connecting people to the right solutions, and this inaccurate message prevents many people with MS from receiving vital support services that are supposed to be part of their Medicare benefits.

There are similarities between this era of confusion and that of the late 1980s, Dombey said.

In 1987, NAHC, a group of Medicare beneficiaries, home health agencies, and 13 members of Congress sued Medicare over its home health policy and claims auditing practices. This resulted in the benefit range of 28–35 hours of support services.

However, Dombey said several changes in policies and practices — combined with reductions in payments — have altered the scope of home health benefits to the point where it is unrecognizable.

“At that point, what was happening was widespread, arbitrary, retroactive denials of claims,” ​​Dombey said. “This new generation has another essential element. I think a lot of the results are due to changes in payment models and payment rates.”

Claims problems are still there, but now they’re just compounded by the interest issue.

“They don’t give you a lot of money to provide care, and when you provide care, they second-guess whether they’re covered by Medicare or not,” Dombey said. “This chilling effect … is a powerful reason to fear as well as be unable to provide care.”

Looking forward, home health agencies need to understand that there is a risk that agencies will be blamed for this.

Ultimately, agencies must be upfront and honest with patients about what care they can and cannot provide.

“If it’s in the care plan, they have to provide the service,” Dombey said. “If they can’t provide what’s in the care plan, they need to find another home health agency that can. They should be honest with the patient and explain what is missing and how they could fill the gap.

The worst-case scenario for home health agencies and their allies is if they are blamed for Medicare’s shortcomings, Dombey said.

The lawsuit focused on the failure to properly supervise home health agencies. Agencies shouldn’t give watchdogs — in this case Medicare and HHS — ammunition to point fingers at them, Dombey said.

“I think the main thing that agencies have to watch out for is somebody trying to incriminate them,” Dombey said. “Home Health Agencies: Protect the Patient, Protect Yourself, and Don’t Let Medicare Get Away With It.”

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