NAHC Supports Class-Action Lawsuit Against HHS

WASHINGTON, D.C. (October 11, 2022)—Three individuals, the National Multiple Sclerosis Society and Team Gleason filed a suit against Department of Health and Human Services (HHS) Secretary Xavier Becerra last week over Medicare home health benefits. The plaintiffs claim Becerra is violating their rights under the Medicare Act and Section 504 of the Rehabilitation Act of 1973 by impeding and restricting the availability, accessibility and coverage of home health services.

“Decades of misguided policy changes in the Medicare home health benefit have eroded rights guaranteed in Medicare law to over 60 million beneficiaries,” William A. Dombi, President of the National Association for Home Care & Hospice (NAHC) said in a statement. 

The lawsuit revolves around whether Medicare is required by Congress to cover up to 28 hours a week, and in some cases up to 35 hours a week, of home health services. In 1980, NAHC, Medicare beneficiaries, home health agencies and 13 members of Congress sued HHS on its home health policy and claims audit practices, leading to the establishment of the 28- to 35-hour aide services scope of benefits.

“While the home health benefit includes 28 to 35 hours a week of medically necessary home health aide services, policy changes, arbitrary audit practices by Medicare contractors and an endless series of payment rate cuts have made those rights a mere fiction,” said Dombi.

The lawsuit states Becerra “has effectively redefined eligibility for Medicare-covered home health aide services to exclude people who require more than very minimal aide services for a short duration of time.”

In the lawsuit, the plaintiffs also said they have “been forced to cobble together costly alternatives to Medicare-covered home health aide services” due the secretary’s polices.

Dombi said the current 30-day episode base payment rate covers less than the cost of a single visit from a home health aide. 

“You cannot realistically expect a home health agency to be able to deliver 28 to 35 hours a week of aide services with an effective $80 of reimbursement. Even with outlier payment, Medicare’s own analysis shows a $5000 shortfall in payment to the provider,” he said. 

In late June, the Centers for Medicare & Medicaid Services (CMS) introduced a proposed rule that included an $810 million decrease in aggregate payments for home health. The rule also includes a 7.69% permanent behavior adjustment. The final rule is expected this month. 

“We hope that CMS recognizes the disaster in the making such a cut would trigger. We have asked the administration to suspend that cut in hopes of getting CMS to re-evaluate its proposal,” said Dombi.

The lawsuit, Johnson v. Becerra, 22-cv-3024, was filed in the U.S. District Court for the District of Columbia on Oct. 6, 2022. Read the full brief here.