The Home Care Crisis: An Elder Justice Issue

This is Part Five of a ten-part CMA Issue Brief Series examining the growing crisis in access to Medicare home health coverage and necessary care – and outlining the Center for Medicare Advocacy’s work to address these issues. We invite you to follow this Issue Brief Series and submit Medicare home health stories to the Center at https://www.medicareadvocacy.org/submit-your-home-health-access-story/.

CMA Issue Brief Series: Medicare Home Health Care Crisis

1. Overview – The Crisis in Medicare Home Health Coverage and Access to Care
2. Medicare Home Health Coverage, Legally Defined
3. Medicare Coverage for Home Care Is Based On a Need For Skilled Care – Improvement Is Not Required
4. Misleading and Inaccurate CMS Medicare Home Health Publications
5. The Home Care Crisis: An Elder Justice Issue
6. Beneficiary Protections Are Lacking In Home Health Provider Conditions Of Participation
7. Barriers to Home Care Created by CMS Payment, Quality Measurement, and Fraud Investigation Systems
8. Proposed CMS Systems Will Worsen the Home Care Crisis
9. A Further Examination of the Home Care Crisis: Published Articles and Statistical Trends
10. Strategic Plans to Address and Resolve the Medicare Home Care Crisis

The Home Care Crisis: An Elder Justice Issue[1]

CMS rules and policies are resulting in neglected care and endangered safety for some Medicare beneficiaries. While Medicare home health coverage laws apply equally to all individuals, equitable application of coverage laws has been impeded by administrative payment rules and quality measure incentives that favor beneficiaries who have short-term care needs and disfavor those with long-term, chronic care needs.

The National Academies of Sciences includes in the definition of elder abuse, “intentional actions that cause harm or create a serious risk of harm (whether or not harm is intended) to a vulnerable elder…this includes failure…to satisfy the elder’s basic needs or to protect the elder from harm.”[2]

Elder abuse involves “deprivation of services deemed necessary for maintenance of physical and mental health. Elder neglect is sometimes the result of an inability on the part of an elder to care for him or herself without external assistance or support. It also occurs when the [party] responsible to provide such support fails to fulfill…obligations.”[3]

Some Medicare beneficiaries are being harmed by a Medicare program that promises to cover their home health care, but actually provides little access to Medicare-certified home health agencies.

A Study of Two Medicare Beneficiaries: The Case for Elder Justice

Mr. B and Ms. K both meet the Medicare home health coverage criteria.

1. Mr. B has Parkinson’s Disease and needs long term home care. His plan of care, ordered by his doctor, includes: Nursing for 1 hour/week; Physical Therapy for 3 hours/week; Occupational Therapy for 2 hours/month; and a Home Health Aide for 28 hours/week.
2. Ms. K had a knee replacement and needs 6 weeks of home care to recover complete independent functioning. Her plan of care, ordered by her doctor, includes: Physical Therapy for 3 hours/week for 6 weeks; and a Home Health Aide to assist with bathing for 5 hours/week.

Mr. B made an exhaustive search of Medicare certified home health agencies that serve his home area. Most would not even evaluate him for care. One agency was willing to work with him, but even that agency said they could only provide him with limited services. Thus, instead of the hour of skilled nursing a week he needs, he receives an hour a month. Instead of 3 hours of physical therapy a week, he receives an hour a week. Instead of 2 hours of occupational therapy a month, he receives 1 hour a month. Instead of 28 hours of home health aide a week, he receives 3 baths a week. The doctor’s order and plan of care had to be adjusted to reflect the limited services Mr. B was actually able to obtain.

Ms. K easily secured a home health agency to provide her full plan of care.

Home health agencies can choose whom to serve, and when to discharge them, under the Medicare Conditions of Participation. CMS payment models and quality measure ratings incentivize home health agencies to serve beneficiaries who only need short term care to get better. Beneficiaries who need long term care are not even accounted for in CMS’ measurements. Individuals whose care is not “measured” by a home health agency will likely not receive care. CMS administrative rules and policies result in the following for Mr. B and Ms. K:

• Home health agencies want to provide care to Ms. K, not Mr. B.
• Home health agencies will likely receive a higher profit margin for Ms. K and may lose money caring for Mr. B.
• Home health agencies will receive a positive quality rating for Ms. K and a negative quality rating for Mr. B.
• Home health agencies will be rewarded with value-based incentive payments for Ms. K and be penalized for serving Mr. B.
•  Long term care for Mr. B is more likely to trigger an agency fraud audit than short term care for Ms. K.

Mr. B, and other Medicare beneficiaries with long term and chronic care needs, are unable to obtain the Medicare coverage for which they qualify under the law. If they are fortunate enough to find any home health agency to serve them, they are often offered significantly diminished services – likely a fraction of the covered care for which they qualify. Mr. B’s inability to obtain the care he needs, and the Medicare coverage for which he qualifies, jeopardizes his health and well-being.  This amounts to an elder justice issue perpetrated by CMS payment and quality rules and policies.

For Mr. B to obtain justice, CMS should conduct Medicare contractor and home health agency trainings about legal home health coverage. CMS should also equalize all payment and quality measures to ensure every beneficiary has fair and equal access to care. If CMS fails to achieve these corrections, Congress should insist CMS properly effectuate coverage laws. Ultimately, if necessary, the courts must compel CMS to ensure that its rules and policies enforce the law to guarantee that Medicare-certified agencies provide appropriate care for all who qualify.

Conclusion

Medicare home health coverage laws are adequate to keep many people in their homes with the care they need. Regrettably, however, CMS home health payment rules and policies create a bias toward serving individuals with short-term needs and neglecting care for people with long term, chronic care needs.

The newly proposed home health rules, published in the Federal Register on July 28, 2017 (https://www.gpo.gov/fdsys/pkg/FR-2017-07-28/pdf/2017-15825.pdf) will greatly exacerbate the current inequities, further jeopardizing access to care for individuals like Mr. B. The Center for Medicare Advocacy is currently drafting comments regarding these proposed rules and invite all who are interested to contact us to sign on or to use our analysis to write your own response.

Too many of the most vulnerable Medicare beneficiaries are at risk of neglect and abuse due to CMS rules and policies that keep them from obtaining appropriate home health care. Medicare coverage laws are intended to allow people who legally qualify for the home health benefit to remain in their homes – this promise must be fulfilled.

August 2, 2017 – K. Holt