The trusted source for
healthcare information and
By MATTHEW HAY
HHBR Washington Correspondent
WASHINGTON The National Association for Home Care (NAHC; Washington) continues to see federal courts as the best, and sometimes only, avenue to address its grievances with the Health Care Financing Admin is tration (HCFA; Baltimore), according to veteran NAHC counsel Bill Dombi.
"I see signs that HCFA is once again opening its eyes and ears to input, but I don’t feel confident that they are far enough toward that end to believe that we can pull our guns on litigation," he recently told HHBR. Dombi said NAHC has signaled HCFA that the trigger for litigation will be pulled a lot more readily than it has in the recent past. "We want to use that as a way to get them to the negotiating table," he said.
According to Dombi, one potentially far-reaching court action may be the Supreme Court’s decision in June that the Americans with Disabilities Act (ADA) requires the Medicaid program in Georgia to place persons with mental disabilities in community settings rather than institutional settings. In that case, the state Medicaid program challenged a court of appeals decision that required it to provide a community-based program for persons that would otherwise require institutional psychiatric treatment.
While that decision did not address home health per se, Dombi said it strikes at the heart of a pattern among state Medicaid programs that favors institutional care. Many state Medicaid programs favor institutional care through payment rates and caps on home care services, as well as waiver programs. "There are often limits on the number of people they accept into the program," Dombi said. "The states are either going to have to reexamine these areas voluntarily or more likely be forced to do so.
"While the Olmstead case concerned mental health benefits, its logic applies equally to regular healthcare services as well," said Dombi. "I think it has the potential for being extremely significant, but it is going to take some further advocacy to get it to that point."
Dombi said NAHC recently urged Health and Human Services (Washington) Secretary Donna Shalala to audit state Medicaid programs and their compliance with the ADA to gauge conformity with the standards set in the Olmstead case. "We are going to start from directions like that to try to get some total oversight on the Medicaid programs," he said. "We will probably end up targeting some states where we think they should be doing something different to be in compliance with the ADA in their programs." When the circuit court decision came out, HCFA issued a memorandum to states explaining their responsibilities under the ADA. But Dombi said HCFA has typically exercised fairly weak oversight system over most components of Medicaid. "States have been given great flexibility," he said.
But NAHC’s legal efforts are by no means confined to the Olmstead case. In fact, NAHC is currently waiting for action by the court in three separate cases. One case argues that HCFA violated the Regulatory Flexibility Act by failing to undertake an impact analysis prior to implementing the interim payment system (IPS). In that case, NAHC argues that HCFA was required to consider alternatives to IPS that would have had a less adverse impact. "In that suit, all papers are filed, and we are waiting for a decision on motion for summary judgement cross motions," said Dombi.
In addition, NAHC is waiting for decision for summary judgment and motion for class certification in O’Neil vs. Shalala. That case attempts to expand the Medicare benefit to disabled individuals not considered homebound because of their ability to leave the home for non-medical purposes.
Finally, there is the Healy case in Connecticut that NAHC was asked to join. That case involves Medicare beneficiaries who were denied services. "We filed motion for intervention, and we are waiting for the court to decide that one now," said Dombi. "The defendant did not file any objection, but the plaintiff filed an objection to our intervention."