Olmstead may be home health’s key to Medicaid coverage


HHBR Washington Correspondent

WASHINGTON – The U.S. Supreme Court’s recent decision in the Olmstead case against the Medicaid program in Georgia represents the home care industry’s best opportunity to turn Medicaid into a home care program rather than a nursing home program, the National Association for Home Care’s (NAHC; Washington) Bill Dombi argued at the association’s policy conference in Washington, DC, earlier this month.

The decision requires state Medicaid programs to take reasonable efforts to deinstitutionalize the disabled and has led to a stepped up effort by the Department of Health and Human Service’s (HHS) Office of Civil Rights to require each state to develop a plan to comply with the Americans with Disabilities Act (ADA).

Dombi urged home health providers to tap their creativity and insight on how state Medicaid programs can make that transition. "It does not mean that they eliminate nursing homes," he added, "but many of these patients can be cared for in the home setting."

Dombi pointed out that Medicaid coverage of home health ranges dramatically. For example, he said New York state has taken a "superhuman effort" to create home care options under Medicaid that other states have ignored. In fact, he said, New York state spends roughly 60% of all Medicaid home care dollars in the United States. At the same time, many other states, such as Oklahoma, spend almost nothing. "In New York state, you can get 24-hour-a-day home care services," he explained. "In Oklahoma, you can get 12 visits of a home care nurse in a year’s time."

The Olmstead case has now put HCFA on the side of home care to enforce the ADA, and that could significantly alter the current landscape, said Dombi. "You will likely see lawsuits brought by [home care] advocates throughout the states," he predicted.

Dombi also warned home care providers about emerging quality of care issues. As agencies transition from Medicare cost reimbursement to prospective payment, he said, they will be "guinea pigs in a behavioral modification experiment" carried out by HCFA. "They want your behavior to change," he said. "And the change in the behavior that they will encourage will be to provide less care to patients."

One result of that may be that agencies find themselves providing less care than patients need, according to Dombi. "And the result of that may be that you find yourself sitting at the defense table in a lawsuit brought by attorneys seeking damages for malpractice for premature discharge or abandonment," he added.

Likewise, Dombi said, agencies may find themselves defending allegations of a Federal False Claim because they certified that they are in compliance with the conditions of participation. Those actions have already been taken against nursing homes, he warned. "There are new strategies being employed by the Department of Justice (Washington) to go after nursing homes as it relates to the conditions of participation by characterizing them as fraud issues," Dombi reported. "It is a serious legal issue that warrants attention."

Patient access

According to Dombi, another issue related to quality of care is patient access. He said the HHS Office of Inspector General (OIG) is currently looking at re-hospitalization rates for home care patients who have been discharged. "We have been burned more than once by the OIG looking at home care," he warned.

"I do not believe they are looking at them for the purposes of finding that the interim payment system has forced patients back into hospitals," he cautioned. "I believe they are looking at it to say that [home health agencies] have done something wrong for patients.

"The beneficiary notice requirement is connected to all of this," he added. "You really should study what your responsibilities are under the [HCFA] transmittal that was issued."

Dombi also noted that when the lawsuit that triggered HCFA’s requirement for beneficiary notices (Healy v. Shalala) was settled, the judge found that the law gives beneficiaries the right to get notices from providers of services prior to a change in treatment or coverage. But the judge did not declare what that particular notice and process should be and instead deferred to HCFA.

While home health agencies are not obligated to follow the model notices and standards later issued by HCFA, Dombi advised agencies to do so. "When in doubt, give notice," he said.

The next step in this process is for the Office of Management and Budget (Washington) to give clearance under the Paperwork Reduction Act, Dombi said. "We have serious problems with that notice," he said. "I have not found many home care patients, and I have not found many lawyers that can understand what that notice means, but [HCFA] believes this is an effective communication tool for beneficiaries."

Finally, Dombi warned home health agencies about the increasing trend toward sample adjudication of claims. According to Dombi, NAHC’s efforts to challenge HCFA’s authority to engage in sample adjudication date back to 1987. But he reported that HCFA is now using many different forms of sample adjudication. "Sampling could be the end of your organization when you are hit with it," he warned. "Regardless of the sample adjudication an intermediary employs, it is not a statistically valid sampling methodology."