Alert – Spotlight on Medicare Home Health Care; Tax Cuts Set Stage for Medicare/Medicaid Cuts; ACA News

1. Medicare Home Health Coverage is Not a Short-Term, Acute Care Benefit ─ Congress Acted in 1980 to Provide for Longer-Term Coverage
2. Final Home Health Rules and Interpretive Guidance: Proposed Payment Model Rescinded
3. Advocates Oppose House Tax Cuts Bill that Would Set the Stage for Deep Cuts to Medicare & Other Programs
4. This Week in Sabotage – and Some Good News!

Medicare Home Health Coverage is Not a Short-Term, Acute Care Benefit ─ Congress Acted in 1980 to Provide for Longer-Term Coverage

Medicare home health coverage is often erroneously described as a short-term, acute care benefit. Though often implemented in this way, this is not true.  Under the law, people who meet the threshold qualifying criteria (legally homebound and needing skilled care), are eligible for Medicare home health coverage so long as they need skilled care.[1] In fact, Congress actually acted affirmatively to authorize long-term Medicare home health coverage in 1980 – removing the annual cap on visits and rescinding the prior hospital stay requirement.

Congressional Action and Legislative History

The Omnibus Reconciliation Act of 1980 (OBRA 1980)[2], expanded the Medicare home health benefit. Prior to this, beneficiaries only enrolled in Part A were eligible for up to 100 home health visits annually, following a three day hospital stay. Coverage was also available under Part B, also limited to 100 visits per calendar year, but this coverage was not dependent on a prior hospitalization. OBRA 1980 eliminated the annual visit cap and the Part A prior hospitalization requirement, thus affirmatively expanding coverage for beneficiaries.

In the OBRA 1980 legislative history, Congress expressed a desire to further liberalize home care coverage, noting there were many “meritorious and deserving alternatives” proposed, and that agreement was reached on these particular improvements.[3] Thus, it is reasonable to infer that these changes – which made it clear that Medicare home care coverage is not short term or linked to acute care – were decisions Congress carefully considered and agreed upon.

            Elimination of the Annual Cap on the Number of Covered Home Health Visits

Prior to 1980, coverage was capped under both Medicare Parts A and B at 100 home health visits per year. In the legislative history of OBRA 1980, Congress expressly stated that “unlimited visits would be available”[4] and that the “bill provides Medicare coverage for unlimited home health visits.”[5] The Congressional intent is clear: By removing the annual visit cap, Congress meant to authorize home health coverage for the long term – when appropriate and when other coverage criteria are met.

            Elimination of the Three-Day Prior Hospital Stay

Previously, beneficiaries only enrolled in Medicare Part A could not access home health coverage without a prior three-day hospital stay. This requirement did not apply to beneficiaries who also had Part B, as coverage under Part B was not predicated on a prior hospital stay. OBRA 1980 repealed the Part A prior hospital requirement. The Subcommittee on Health of the Committee on Ways and Means stated “Part A was designed to encourage early discharge of hospital and skilled nursing facility (SNF) patients who continue to need skilled care but not at the intensive level provided for in a hospital or SNF. The Part B benefit – no prior hospitalization required – offers those who require skilled care as an alternative to or postponement of hospitalization.”[6] 

Congress eliminated the three day requirement under Part A, aligning it with Part B. (Thus allowing coverage under both Parts A and B “to postpone or avoid hospitalization.”) At the time, more than 1.1 million beneficiaries had Part A only and would benefit from the repeal of the prior hospital requirement.[7] Now, all beneficiaries can qualify for Medicare home health coverage whether they were recently hospitalized or not. Medicare home health coverage is available for homebound beneficiaries who need skilled nursing or therapy, whether they are recovering from an acute illness or injury and are expected to improve, or have a longer-term problem and need home care to maintain or slow decline of their condition. As Congress intended in 1980, Medicare-covered home care can often help beneficiaries forego avoidable hospitalizations.

Conclusion

Medicare can be a source of coverage for long-term home health care for people who qualify.

The relevant legislative history for OBRA 1980 makes it clear that Congress intended to “liberalize” the Medicare home health benefit, and that the changes were seen as “benefit increases” which would be “important to beneficiaries.”[8]

Congress’ 1980 action to reframe and expand Medicare home health coverage appears to be all but forgotten today. Home health care is often mistakenly referred to as a short-term, acute care benefit. This is in conflict with Congressional intent and long-standing Medicare law. The Center for Medicare Advocacy will continue to refute this fiction and advocate for beneficiaries who need and are eligible for long-term Medicare home health coverage and care.

Final Home Health Rules and Interpretive Guidance: Proposed Payment Model Rescinded

CMS published the 2018 Home Health Prospective Payment System final rule on November 7, 2017.

A broadly challenged proposed new payment system (Home Health Groupings Model, or HHGM) was not finalized. As we note in a previous CMA Alert, HHGM would have provided home health agencies further disincentives to serve people with longer-term chronic conditions.  The proposed payment system would have paid agencies more money for a brief amount of care, and paid less after 30 days.  In addition, it would have paid agencies more money when a patient started home health care within 14 days of discharge from an institution, such as a hospital, and paid less if a patient was not first an inpatient prior to starting home health care.

Unfortunately, discriminatory Value Based Purchasing Models and Quality Reporting Requirements were advanced in the final rule.  Such measures promote disparity and create barriers against fair access to home care benefits for the most vulnerable Medicare beneficiaries.

CMS also published Draft Interpretive Guidelines for new Home Health Conditions of Participation in the Medicare and Medicaid programs.  The guidelines will become effective January 13, 2018.  Further analysis of the new Conditions of Participation and the Interpretive Guidelines will be forthcoming in a future CMA Alert.

Advocates Oppose House Tax Cuts Bill that Would Set the Stage for Deep Cuts to Medicare & Other Programs 

Last week, Judith Stein, executive director of the Center for Medicare Advocacy, and Joe Baker, president of the Medicare Rights Center, issued a joint statement regarding the Tax Cuts and Jobs Act introduced in the House of Representatives.

As noted in the statement, “This massive tax cut for the wealthy sets the stage for deep cuts to Medicare, Medicaid, and Social Security in the near future” by setting up a “two-step process: 1) Cut taxes for the wealthy and corporations, adding $1.5 trillion to the federal debt over the next decade; 2) Use the higher debt – created by the tax cuts – to argue that drastic cuts to our bedrock programs such as Medicare, Medicaid, and Social Security, are necessary. This strategy is not new; some lawmakers regularly repeat tired and inaccurate arguments that Medicare is unaffordable for our country, but this tax cut will create additional pressure to make Medicare beneficiaries pay for newly created debt.”

Today, the Leadership Council of Aging Organizations (LCAO), a coalition of 70 national nonprofit organizations concerned with the well-being of America’s older population and committed to representing their interests in the policy-making arena, issued a statement concerning the House bill.   Both the Center for Medicare Advocacy and Medicare Rights Center are members of this coalition.

In addition to outlining the threats to Medicare, Medicaid and Social Security, the LCAO statement notes the danger to discretionary programs like the Older Americans Act, and the danger of repealing the medical expense and state and local tax deductions.

Despite these concerns, the House is expected to vote next week on a bill introduced last week, without a single hearing on the details of the bill. The Senate plans to introduce their tax cut version this week, with the goal of having a bill on the President’s desk by Christmas.

As we said with health care repeal, these fast-track efforts to undercut the rights and interests of most Americans can be stopped.  Stay informed.  Speak out!

This Week in Sabotage – and Some Good News!

There is some good news to report this week, even as we continue to watch the administration undermine the Affordable Care Act (ACA).

Maine voters passed a referendum yesterday to expand Medicaid under the Affordable Care Act; this will provide Medicaid health coverage to about 80,000 additional Maine residents. Maine is the first state to pass such a referendum. This action is particularly impressive since Maine Gov. LePage had vetoed five earlier bills that would have expanded Medicaid.

In other good news, reports have shown that in spite of constant sabotage, ACA enrollment in the first week has surged, surpassing previous years. According to The Hill, more than 200,000 people enrolled on the first day of open enrollment, with over 1 million people visiting www.healthcare.gov. Congratulations to everyone who has been working to raise awareness about open enrollment and the need for quality health coverage.

The people are making it clear: they want access to quality health coverage under the Affordable Care Act and will take action to help make it happen.

Even as we celebrate this good news, however, the Administration must still be held accountable for acts of sabotage. Actions such as the Executive Order allowing the sale of junk plans; cutting the enrollment period in half; slashing funding for enrollment assistance; refusing to participate in enrollment events; shutting down healthcare.gov during critical times; and not paying cost sharing reductions are blatant efforts to undermine the ACA.

Added to the sabotage list this week: a proposed rule issued by CMS which would, among other things, weaken ACA requirements for essential health benefits in 2019. The ACA requires insurers to cover essential health benefits such as ambulatory services, emergency services, hospitalization, maternity care, mental health and substance abuse, prescription drugs, rehabilitative services, laboratory services, preventive and wellness services, and pediatric services. Any attempt to weaken these essential benefits through regulation and deny people care is unacceptable and must be rejected.

We encourage everyone to look at these rules and submit comments by November 27th.

View the proposed rule at: https://www.federalregister.gov/documents/2017/11/02/2017-23599/patient-protection-and-affordable-care-act-hhs-notice-of-benefit-and-payment-parameters-for-2019