Medicaid home health outside of the home?
Court decisions affect homebound requirement
Need to care for your Medicaid clients outside their homes? You may be helped by a recent court ruling. On May 13, the U.S. Court of Appeals for the Second Circuit ruled that the statute that establishes home health services as a mandatory Medicaid benefit is ambiguous as to the site of care. That means Medicaid cannot limit coverage of home health services to those provided at the recipient’s residence.The ruling only directly affects the Medicaid home health services benefit in Connecticut. However, it may open the door to similar litigation in the other states under the jurisdiction of that court — New York and New Jersey — and to other parts of the country, says William A. Dombi, vice president for the National Association For Home Care (NAHC) in Washington, DC, and director for the Center for Health Care Law, also in Washington, DC. The Health Care Financing Administration (HCFA) in Baltimore may even adopt the ruling as a national policy for the Medicaid program — if home care providers push for that by contacting their legislators, he adds.
A case of disabled children
The two named plaintiffs in the case Skubel v. Thomas are children suffering from serious medical conditions and disabilities. They require 40 hours or more per week of Medicaid-funded medically necessary nursing care.Families of the children requested funding for services provided outside the home. Because they require nearly constant nursing supervision, the children must be accompanied by a nurse if they are to participate safely in educational and social activities available in the community. A Department of Health and Human Services regulation, however, limits Medicaid funding to those home health services provided to a recipient at his or her place of residence, and HCFA officials indicated there were no plans to amend the regulation.
The appellate court reviewed an appeal from a federal district court decision and held that the federal law is ambiguous as to whether home health services must be provided exclusively at the recipient’s place of residence.
"The phrase [home health care services] could just as well mean services of the type ordinarily provided in the home," the court said.
The court concluded that there was "no logical basis to support restricting Medicaid funding to home nursing services provided exclusively at the recipient’s place of residence."
"There does not appear to be any rational connection between the regulation and the purpose to be served by the statute governing home nursing services," the court said. "The restriction ignores the consensus among health care professionals that community access is not only possible but desirable for disabled individuals."
The court, however, did say that recipients are limited to the same number of service hours they would receive if the home health services were provided only in their homes.
How would restrictions affect children?
NAHC was concerned about how the restriction of Medicaid-funded home health services provided exclusively in the home might affect the care of children, Dombi says. "It’s much more difficult demonstrating that they’re homebound — you can carry a kid out of the home."The ruling could help children who require nursing support so they can go to school, says Clara Gruszkiewicz, RN, nursing supervisor for private duty registry VNA Health Care in Hartford, CT. "I think [the ruling] is a wonderful thing for those children."
The ruling should help other clients as well, says one provider. "There are countless examples of children, disabled adults, and elderly people where the Medicaid dollar is well-spent in providing services that end up having portions of the services provided outside a person’s home," says Molly Rees Gavin, MSW, president of Connecticut Community Care in Bloomfield. Connecticut Community Care is a nonprofit agency that helps older adults and disabled individuals and their families find solutions to long-term care problems through case management services.
"From my clinical and administrative experience," she adds, "I agree that [the regulation] was a very restrictive interpretation."
In 1990, the same court ruled invalid a regulation that limited the provision of "private duty nursing" to a recipient’s residence. The case, Detsel v. Sullivan, also involved children suffering from severe medical conditions. With the Detsel case, HCFA ultimately adopted the court’s standard and secured legislative authorization for the nationwide elimination of the at-home restriction on private duty nursing, according to Dombi.
As he wrote in the NAHC Report No. 716, the implications of the Skubel position could have a wider effect than the Detsel case because home health services — defined as skilled intermittent care — are a mandatory Medicaid benefit, while private duty nursing is optional. "The decision may be considered as supportive of efforts to eliminate the homebound requirement that has been instituted by some Medicaid programs on the home health services benefit."
Dombi says he wrote about the case in the NAHC report to encourage readers to push HCFA to make the ruling a national policy for the Medicaid program. "They should talk to their states and say, the homebound requirement shouldn’t be there.’"
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