Courts may cure home care's ills
Agency closing toll reaches 1,000 and climbing
More than 1,000 home care agencies had closed their doors by mid-August, a body count that national home care experts attribute to the Health Care Financing Administration's (HCFA) Interim Payment System (IPS) and the financial havoc it has wreaked on the industry.
However, the industry has not taken this assault lying down. Home care agencies and associations nationwide have filed lawsuits against the Department of Health and Human Services, challenging the constitutionality and application of IPS. (For further discussion of pending legal actions, see story, p. 133.)
Hospital Home Health has obtained copies of three of these lawsuits and interviewed the plaintiff's attorneys. Here's a summary of the lawsuits:
4 San Martin Home Health et al v. United States of America; Department of Health and Human Services; the Health Care Financing Administration; and Palmetto Government Benefits Administrators, a division of South Carolina Blue Cross and Blue Shield, a South Carolina Corp.; filed July 2, 1998.
Austin, TX, attorney Mark E. Price filed the lawsuit in U.S. District Court in Dallas on behalf of 25 home health agencies and more than 30 Medicare beneficiaries. The plaintiffs include one quadriplegic man who had been receiving regular home health services until IPS, Price says.
After IPS was implemented, the agency that had been serving him folded and the registered nurse who owned the agency continued to see him without pay, Price adds. "But she's going to have to move to get another job and earn an income, and he will be left without home health care."
Medicare patients in Texas greatly affected
Price says IPS has severely affected home health agencies and Medicare beneficiaries in Texas, where many of the patients had been receiving daily and twice-daily visits for chronic, long-term conditions. Already, so many home care agencies have closed in Texas, he says, that he has affidavits from 12 physicians who say they cannot find home health agencies to care for their acute, high-cost patients.
"One physician is sending his nurse out at his own expense to help a severe diabetic," Price adds. The diabetic woman must receive insulin shots twice daily, and she has no family or caregivers to help her out.
Price says he receives five to 10 calls a day from Medicare patients who have heard about his lawsuit. He is working to turn it into a class action lawsuit.
The problems Price describes are not surprising because Texas has so many home health agencies, many of which are new, says Bill Dombi, director of the Center for Health Care Law for the National Association for Home Care (NAHC) in Washington, DC.
"Texas is going to be very hard hit [by IPS] because it had the largest number of home health agencies in the country, over 2,000 Medicare-certified home health agencies," Dombi says. "Lots of these were start-up agencies, serving long-term, higher-cost patients who are not accommodated under IPS." Dombi says it was fairly typical of new Texas agencies to provide 700 visits a year to diabetic patients, who could not inject their own insulin.
The Texas lawsuit claims that the government's severe cuts in funding Medicare home health services has put hundreds of thousands of high-risk acute beneficiaries at the risk of death or institutionalization. It also challenges the validity of the implementation of IPS provisions and related regulations.
The lawsuit quotes a congressional resolution of June 5, 1998, that states, "The Administration should ensure that the implementation of the interim payment system does not adversely affect the availability of home health services for Medicare beneficiaries."
Is IPS an irrational system?
The lawsuit also claims IPS is irrational. "While Congress' primary purpose in enacting this payment scheme was to lower the costs to Medicare of providing health care to the elderly, sick, and disabled while ensuring that they continued receiving the same quality of care, the Interim Payment System through its implementation by HCFA will achieve the opposite result and defeat the intent of Congress," it reads. "Patients will be forced to migrate to institutional settings at a higher overall cost."
4 National Association for Home Care v. Donna Shalala, Secretary, U.S. Department of Health and Human Services; filed April 15, 1998.
NAHC's lawsuit, filed in the U.S. District Court for the District of Columbia, was filed on behalf of all members and Medicare participating home health agencies in the United States. The lawsuit challenges the implementation and application of changes to the Medicare home health services benefit as contained in the Balanced Budget Act of 1997. Specifically, NAHC attacks the HCFA's final rule issued on March 31, 1998, and claims that, "This final rule represents an unreasonable, arbitrary, and capricious implementation of statutory authority."
The lawsuit states that as a result of the defendant's illegal rule making, nearly 58% of all home health agencies will incur costs that are greater than what they will be reimbursed for serving Medicare patients. NAHC's lawsuit asks the court for injunctive and declaratory relief to stop enforcement of the published rule and to require HCFA to revise the rule.
4 Vicki O'Neal of Carborro, NC; Patricia Rote of Forest Hill, MD; Mary Helen Gunkler of Eden Prairie, MN, and the National Spinal Cord Injury Association of Silver Spring, MD, v. Donna Shalala, Secretary, U.S. Department of Health and Human Services; filed May 6, 1998.
This lawsuit, filed on behalf of all disabled or elderly Medicare enrollees in need of home health services, challenges HCFA's interpretation of the "confined to home" requirement under the Medicare home health benefit.
"HHS has implemented and enforced an arbitrary and capricious interpretation of the Medicare 'confined to home' requirement to categorically deny coverage to persons with severe disabilities," the lawsuit states. "As a result, Medicare home health services patients are faced with irrational and unexplained coverage denial determinations which fail to take into account and consideration individual patient needs, the attending physician's opinion, and the spirit of community inclusion."
The plaintiffs asked the court for judicial relief to prevent further administrative erosion of the home health benefit.
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