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Home Healthcare

Home Healthcare

Overview

Home healthcare includes Home Health Agencies (HHAs) and private duty nursing companies. These home healthcare providers bring nurses and other practitioners to the patient’s home. HHAs generally provide skilled nursing, therapy, or social services to patients in their homes, in addition to certain medical supplies and equipment. HHAs may be either freestanding or hospital-based in organization. Excerpt from Carol Colborn Loepere, Post-Acute Providers and Suppliers, in FUNDAMENTALS OF HEALTH LAW 401, 415 (American Health Lawyers Association 5th ed., 2011).

Policy

HHAs are generally subject to state licensure requirements. In some states, licensure is only required if the entity provides skilled nursing and at least one type of therapy service. In others, the provision of skilled nursing services alone (e.g., through a private duty nursing agency or a home infusion therapy company) or non-medical companion services may trigger licensure. Consult state law and regulations.

Excerpt from Todd J. Selby, Introduction to Long Term Care, Home Care, and Hospice Law, Fundamentals of Health Law (American Health Lawyers Association October 2010); see also Carol Colborn Loepere, Post-Acute Providers and Suppliers, in FUNDAMENTALS OF HEALTH LAW 401, 415 (American Health Lawyers Association 5th ed., 2011).

Authority

In order to qualify for Medicare coverage of home health agency services, a Medicare beneficiary must be: confined to the home; under the care of a physician; receiving services under a plan of care established and periodically reviewed by a physician; and, in need of skilled nursing care, physical therapy or speech-language pathology, or have a continuing need for occupational therapy, on an intermittent basis. Excerpt from Todd J. Selby, Introduction to Long Term Care, Home Care, and Hospice Law, Fundamentals of Health Law (American Health Lawyers Association October 2010); see also Carol Colborn Loepere, Post-Acute Providers and Suppliers, in FUNDAMENTALS OF HEALTH LAW 401, 415 (American Health Lawyers Association 5th ed., 2011).

Common Areas of Concern

There has been a controversy over what Medicare considers “confined to home” or “homebound.” CMS and the regional home health intermediaries (RHHIs) required the patient to literally be confined to home. In 2000, Congress expanded the homebound definition to allow patients to attend adult day care programs or religious services. CMS’ current policy is that chronically disabled individuals who otherwise qualify as homebound should not lose home health services because they leave their homes infrequently for short periods of time for special occasions, such as family reunions, graduations, or funerals.

See Medicare Benefit Policy Manual, Chapter 7, at https://www.cms.gov/manuals/downloads/bp102c07.pdf. Excerpt from Carol C. Loepere, Ancillary Providers & Long Term Care, Fundamentals of Health Law (American Health Lawyers Association November 2008).

HHAs are subject to relatively detailed federal standards if they provide services to Medicare beneficiaries. See 42 U.S.C. § 1395m. These standards, called conditions of participation, govern issues such as the qualifications of personnel, furnishing services, developing plans of care and the like. See 42 C.F.R. § 484.1, et seq. HHAs are subject to termination and civil monetary penalties (CMPs) of up to $10,000 per day if they do not comply with these standards. 42 U.S.C. § 1395bbb(e)–(f). HHAs use a standardized evaluation instrument known as the Outcomes and Assessment Information Set (OASIS) to document the care needs and services for every patient admitted for services. The OASIS is also used to categorize patients for Medicare payment purposes under the prospective payment system for HHAs.

Conclusion

HHAs, as with nursing homes, continue to be the subject of DOJ, OIG, and RHHI audits and investigations. Key concerns have been submission of false cost reports; providing care to patients not homebound; billing for services not rendered; kickbacks for referrals; and improper marketing.

Excerpt from Carol C. Loepere, Ancillary Providers & Long Term Care, Fundamentals of Health Law (American Health Lawyers Association November 2008).