February 25

CMS Makes It Official That Medicaid Home Health Recipients Need Not Be Homebound

On February 2, 2016, the Centers for Medicare and Medicaid Services (CMS) will issue a final rule clarifying that Medicaid beneficiaries do not need to be “homebound” in order to receive home health services.  In addition, the final rule, which revises Medicaid home health regulations (42 C.F.R. § 440.70(c)(1-2)), makes clear that Medicaid home health services are not limited to home settings. 

As Gene Coffey, formerly an attorney with the National Senior Citizens Law Center (now called Justice in Aging), wrote in the January 2010 issue of Caring magazine, “Medicaid’s coverage for home health services plays a critical role in helping individuals stay in their homes and communities while also helping states meet their responsibilities under the [Americans with Disabilities Act].”

According to Justice in Aging, which has been at the forefront of efforts to bring federal and state regulations into compliance with federal law in this area, the final rule “codifies longstanding agency policy, previously articulated in a 2000 letter to state Medicaid directors, that a Medicaid homebound requirement for home health services violates the Americans with Disabilities Act (ADA), as articulated in Olmstead v. L.C., 527 U.S. 581 (1999).”  Despite this, some states have required that recipients be homebound.

Justice in Aging notes that the final rule does not change Medicare’s homebound requirement, although CMS acknowledges the challenges this poses for dual eligible recipients and notes in its rule commentary that “we would permit states the flexibility to authorize additional hours of home health services to account for medical needs that may arise out of the home.” (pg. 56)

The rule will take effect July 1, 2016.  However, to ensure that states and providers are implementing the rule appropriately, CMS is delaying compliance with the rule for up to two years, depending on a state’s legislative cycle.

For more details from Justice in Aging, click here.

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September 10

New Arizona Law Aims to Protect Seniors for Bad Home Care Workers

Advocates are hoping a new Arizona law will help protect seniors from the exploding, but largely unregulated in-home care industry. Sponsored by state Sen. Nancy Barto (R-Phoenix), the law requires non-medical in-home caregiver agencies to disclose to consumers information about background checks, training, cost of services, and hiring and firing policies on an annual basis.

“This is a good first step towards transparency towards those who provide in-home care for vulnerable individuals. I think there needs to be even a little bit more, but this is a good start,” said Laura Oldaker, CEO of By Your Side Senior Care in Tucson and an Arizona In-Home Care Association board member. The law, signed by Gov. Doug Ducey on April 1, applies to non-medical in-home care agencies in Arizona, and not to private, individual caregivers. The disclosure form is not required from specific home health services, senior living facilities, and clients who receive services through federal or state programs, including Arizona Health Care Cost Containment System (AHCCCS), Arizona Long-Term Care System (ALTCS), or Division of Developmental Disabilities (DDD). If agencies fail to give the disclosures to consumers, they are breaking the law. Failure to comply with the law will result in a Class 3 misdemeanor and a maximum 30-day sentence.

For the article from Arizona Daily Star, click here.

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August 15

Agency-Created Rules on Medicare Home Health Services Appeals Are Binding on Agency

Medicare home health services are available for individuals who are “confined to the home.” Medicare pays for these services through contractors known as “Medicare Administrative Contractors” (MACs). A group of individuals filed suit against the Secretary of Health and Human Services alleging the Secretary does not follow its own agency regulations governing appeals of Medicare home health services, which has resulted in improper denial of plaintiffs’ benefits. Although administrative law judges found the plaintiffs to be homebound, the contractors repeatedly denied subsequent claims for services, which plaintiffs contend is in violation of Medicare regulations. The Secretary filed this Motion to Dismiss, which was denied.

The district court held the plaintiffs, who are eligible for both Medicare and Medicaid, have standing to sue even though, as the Secretary asserted, Medicaid would likely pay their claims if they were to be denied Medicare coverage. Plaintiffs are seeking a right to Medicare coverage, and an improper denial of benefits could impose personal liability for uncovered services. Moreover, should Medicaid be forced to pay, one of the plaintiffs would be exposed to estate recovery. In addition, there are differences in the home health services provided between Medicare and Medicaid. Plaintiffs have shown a concrete injury sufficient to support standing. As for jurisdiction, although the court agreed with the Secretary that it does not have mandamus or federal question jurisdiction, the matter is properly before the court under the appeals provision of the Social Security Act found in §405(g). Lastly, the court disagreed with the Secretary’s contention that plaintiffs cannot file a claim for failure to follow interpretive rules related to MACs that do not bind the agency. The court said that it is long settled that rules promulgated by an agency that affect the rights of others are binding on the agency. The regulations governing MACs and Medicare appeals are couched in mandatory language, which, according to the court, shows the agency’s intent to be bound by these regulations.


Ryan v. Burwell, 2015 WL 4545806 (D. Vt. July 27, 2015)

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July 30

Home Health Agencies Get Medicare’s Star Treatment

The federal government has released a new five-star rating system for home health agencies, hoping to bring clarity to a fast-growing but fragmented corner of the medical industry where it’s often difficult to distinguish good from bad. Medicare applied the new quality measure to more than 9,000 agencies based on how quickly visits began and how often patients improved while under their care. Nearly half received average scores, with the government sparingly doling out top and bottom ratings. The star ratings come as home health agencies play an increasingly important role in caring for the elderly. Last year, 3.4 million Medicare beneficiaries received home health services, with nurses, aides, and physical and occupational therapists treating them in the home. Medicare spends about $18 billion on the home health benefit, which provides skilled services that must be authorized by a doctor, not housekeeping care that some elderly pay for privately. For both the government and patients, Medicare’s home health visits are one of the least expensive ways to provide care, and the system has been especially susceptible to fraud. Assessing quality is often challenging for patients and their doctors, who must authorize the visits, often just as patients are leaving the hospital.

For the article from Kaiser Health News, click here.

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