Medicare Home Health Coverage and Care
Is Jeopardized By the New Payment Model –
The Center for Medicare Advocacy May Be Able to Help
Actual Recent Case Study
Mrs. Green has advanced multiple sclerosis. She spends her time either in bed or in a tilting wheelchair. After receiving Medicare-covered home health care for two years, for skilled nursing and home health aide services, Mrs. Green’s home health agency told her Medicare was “closing a loophole” as of January 1, 2020. As a result, the agency told Mrs. Green, she would be discharged from all home care in January 2020, after the end of her current certification period.
As it is, Mrs. Green has been receiving very limited home health care – far less than authorized under the law. A home health nurse comes to her home every two weeks to observe her conditions and change her suprapubic catheter. Her doctor states it is difficult and unsafe for her to have the catheter changed in her wheelchair at the doctor’s office; it should be done at home to be safe. In addition to the nurse, a home health aide helps Mrs. Green just twice a week, and only for a bath.
In the past, Mrs. Green’s husband and caregiver was told by the home health nurse that she would be “all-set” with home health care for Mrs. Green’s life, as she is homebound (requires a wheelchair for all mobility) and has a debilitating, disabling condition. Nonetheless, in December, 2019, a month before a new Medicare home health payment system begins, the home health agency told the Greens that care would end because: (1) Her condition was “stable”, (2) The agency had adopted a policy not to provide long-term care, and (3) Medicare was changing its payment system on January 1, 2020. Mr. Green, who has his own health challenges, was told he could change his wife’s catheter himself.
Mr. and Mrs. Green contacted the Center for Medicare Advocacy (the Center) for help, saying they were devastated by the pending loss of home health care. The Center assured the Greens that Medicare coverage law has not changed. Medicare has not “closed any loophole”.
As the Greens were capable of moving forward themselves, with our guidance, the Center suggested the Greens proceed as follows. These steps may be helpful for others facing Medicare coverage and home health access problems. (Note: Advocates may need to pursue these action steps if the individuals involved are unable to do so.)
Step 1: Ask the Doctor Who Ordered the Home Health Care to Ensure the Necessary Care Continues
We advised the Greens to call the doctor who ordered, certified, and continuously recertified Mrs. Green’s home health care. Based on our conversations with Mr. Green, we suggested the doctor communicate with the home health agency based on the following:
- The doctor has learned from his patient that the home health agency told Mrs. Green that she will be discharged from her home health care, and will not be recertified after the end of the current certification period.
- The doctor was not consulted about this discharge from Medicare home health care.
- The doctor does not agree that discharge from home health care is medically appropriate for Mrs. Green.
- The doctor is prepared to re-certify Mrs. Green’s plan of care and order for home health services.
- Mrs. Green continues to require skilled nursing for suprapubic catheter care/changes, vitamin B-12 shots, home health aide services and other care, as previously and newly ordered. 
- The doctor understands that suprapubic catheter care (insertion, irrigation, and replacement) is specifically listed as a Medicare covered skilled nursing service in the federal regulations (See, Code of Federal Regulations (CFR) at 42 CFR Section 409.33(b)(4); this is reiterated in Medicare’s own Benefit Policy Manual, Chapter 7 Section 184.108.40.206)
- While Mrs. Green’s condition is not stable, “stability,” of a person’s condition is not the criteria for Medicare coverage. Medicare covers skilled nursing (and therapy) both to improve and to maintain (or slow progression) of an individual’s condition.
- Because Mrs. Green meets the home health criteria (she is homebound, is need of a skilled service, has a physician’s order for care, and has had a face-to-face encounter), her home health care, including the nurse and home health aides should continue and be billed to Medicare.
- True, the Medicare payment system is changing as of January 1, 2020, but the Medicare coverage criteria remain the same. The new Medicare payment model does not mean that patients such as Mrs. Green no longer qualify for the Medicare-covered care they need and is authorized under the law.
- The Medicare coverage laws have not changed. Medicare coverage for home health care does not have a finite end-point or duration of time limitation for those who continue to meet the coverage criteria. (See, 42 CFR Section 409.48(a) and (b).) A home health agency cannot simply develop its own policy not to provide longer-term home care for Medicare patients.
- Further, a Medicare-certified agency cannot decide on its own that services defined as skilled under the law, such as suprapubic catheter care, are no longer covered by Medicare or available. This care is covered under the law (See, 42 CFR Section 409.33(b)(4).)
Based on applying the guidance above, Mr. Green has reported that the agency has agreed to continue care for Mrs. Green. She will not be discharged and her care will remain in place.
Step 2: Work to Obtain Reasonable and Necessary Additional Services
The Greens reported that Mrs. Green needs more than two home health aide visits a week, which she receives just for a bath. They wondered if Medicare covers more than that, and how they might obtain additional services. In fact, the law authorizes Medicare coverage for up to 28-35 hours per week of nursing and home health aides combined. (See, Medicare Act, 42 USC Section 1395x(m)(7)(B).)
The Center advised the Greens to report Mrs. Green’s needs to her doctor to see if he will order additional home health aide care. If it is necessary to document the need, the Center suggested that Mr. Green keep a log/diary of how much time he spends, and at what times of the day and night, providing the following services for his wife. As quoted below, these services are defined as Medicare-covered home health aide “personal care services” by federal regulations:
- “Personal care services such as bathing, dressing, grooming, caring for hair, nail and oral hygiene (needed to facilitate treatment or to prevent deterioration of the beneficiary’s health), changing the bed linen of an incontinent beneficiary, shaving, deodorant application, skin care with lotions and/or powder, foot care, ear care, feeding, assistance with elimination (including enemas unless the skills of a licensed nurse are required due to the beneficiary’s condition, routine catheter care, and routine colostomy care), assistance with ambulation, changing positions in bed, and assistance with transfers.
- Simple dressing changes that do not require the skills of a licensed nurse.
- Assistance with medications that are ordinarily self-administered and that do not require the skills of a licensed nurse to be provided safely and effectively.
- Assistance with activities that are directly supportive of skilled therapy services but do not require the skills of a therapist to be safely and effectively performed, such as routine maintenance exercises and repetitive practice of functional communication skills to support speech-language pathology services.
- …Services incidental to…the provision of care…these incidental services may include changing bed linen, personal laundry, or preparing a light meal.”
(See, 42 CFR Section 409.45(b)(1)(i)-(v) and (4).)
After a week or two documenting in the log/diary, the Greens should consult again with Mrs. Green’s doctor about ordering the appropriate amount of home health aide services, based on Mrs. Green’s needs. They should also decide what services Mr. Green can reasonably and safely do himself for Mrs. Green. Medicare home health aide services must, “be of a type that there is no able or willing caregiver to provide, or if there is a potential caregiver, the beneficiary is unwilling to use the services of that individual.” (42 CFR Section 409.45(3)(iii).) Generally, it should not be presumed that an informal caregiver is willing and able to provide the care, or that the patient is willing to accept that care. (Medicare Benefit Policy Manual, Chapter 7, Sections 20.2. See also, Section 220.127.116.11, Example 6: “Note, There is no requirement that the patient, family, or other caregiver be taught to provide a service if they cannot or choose not to provide the care.”.)
For years Medicare beneficiaries have been unfairly losing access to coverage and necessary home health care. With the advent of the new Medicare home health payment system in January 2020, more people may be told they do not qualify. For assistance obtaining, or maintaining, Medicare-covered home health services, contact the Center for Medicare Advocacy at HomeHealth@MedicareAdvocacy.org.
 See, 42 CFR Section 409.42 et seq. See also, https://www.medicareadvocacy.org/medicare-info/home-health-care/; https://www.medicareadvocacy.org/cms-proposed-medicare-home-health-rules-raise-concerns-for-access-to-care-comments-due-september-9-2019/; https://www.medicareadvocacy.org/potential-impacts-of-new-medicare-payment-models-on-skilled-nursing-facility-and-home-health-care/.
 These practice tips also apply to physical and occupational therapies, and speech language pathology services when those skilled services are involved.