That’s a No-No

by Elizabeth E. Hogue, Esq. | Apr 24, 2025 | Admin, Hospice, Medicaid, Medicare, Medicare Advantage, Regulatory

by Elizabeth E. Hogue, Esq.

No-no # 1

“No-No” may seem like something you would say to a toddler, but there is a list of things agency owners do that they should not do. Many of these are things providers may not often consider. This article focuses on the use of private duty services by hospice and home health patients, and what hospices and home health agencies cannot do with regard to aide services.

Aide Services

Both home health and hospice services are usually intermittent and provided in patients’ homes. Patients and their families may elect to utilize the services of private duty/home care companies for additional assistance. At the same time, hospice and home health patients may receive aide services from hospices and home health agencies.

Conditions of Participation

According to Medicare Conditions of Participation (CoPs), hospice and home health aides can only provide personal care services, including bathing. Aides provided by private duty/home care companies may also provide personal care. Unlike aides provided by hospices and home health agencies, however, they can provide additional services; such as laundry, food preparation, light housekeeping, shopping, and running errands.

Private Duty Services

When patients use private duty services, they are often paying for these services out of their own pockets. Even if they have long-term care insurance, patients still bear the financial burden of paying for private duty services. Longterm care insurance often costs thousands of dollars that patients probably paid for themselves. Patients usually pay by the hour for these services.

That's a No-No

Patients may, of course, utilize private duty/home care services to perform any of the services described above. It seems, however, that hospices routinely tell patients who have private duty/home care that they will not provide aide services because private duty/home care aides are able to provide personal care for patients.

Breaking it Down

Here is an example: A hospice admitted a bedridden patient with urinary and fecal incontinence. The patient and caregiver requested aide services from the hospice five days a week to bathe him. He paid for a few hours of private duty/home care services each day. The hospice refused to provide aide services five days a week to bathe him because he had private duty/home care services. No-no!

Compelled to Provide Care

ospices must provide aide services consistent with patients’ needs related to their terminal illnesses. In the example above, the patient clearly had a need for aide services five days a week. If patients and their caregivers state that they prefer to use private caregivers for personal care, then hospices must document the refusal of hospice aide services offered, consistent with applicable standards of care. Then hospices are not required to provide aide services.

Profiteering

When hospices deny aide services that are consistent with applicable standards of care and require patients and caregivers to use private duty/home care services, hospices are shifting the cost of aide services onto patients and their families. Patients and their families may have to pay for additional private duty/home care services to meet patients’ needs. The result for hospices is that they do not incur the costs of aide services, thereby increasing their profits at the expense of patients and their families.

If hospice staff members who refuse to provide aide services to patients and require patients and their families to use private duty/home care services instead are compensated in any way based on the financial performance or profitability of the hospices, let’s hope they look good in orange jumpsuits!

Intent to Defraud

If the private duty/home care services are being paid for by any federal or state health care program; such as Medicaid, Medicaid waiver, VA, or TriCare; then both home health agencies and hospices have engaged in fraudulent conduct by shifting costs that they should have incurred onto other federal government programs.

God forbid that the hospice also owns the company from which patients receive private duty/home care services! Then hospices are limiting their costs while profiting from patients and their families.

Dig Deep and Find Your No-No's

Now is the time for all home health agencies and hospices especially to audit patients’ records to make certain that all patients have been offered services that they are required to provide. If patients and their families choose to use private duty/home care aides instead, documentation must show that they were offered the services but chose to use private duty/home care aides.

No-No's Final Thoughts

The bottom line is that hospices and home health agencies must always provide services needed by patients. Patients may choose to pay for services that are paid for by the Medicare hospice or home health benefits. Patients cannot be required to pay for services privately that hospices and home health agencies must provide. Unacceptable!

This article is the first in a series of “No-no” items for agency owners.

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Relief for Providers

by Elizabeth E. Hogue, Esq. | Apr 11, 2025 | Admin, Audits, CMS, Medicare, Regulatory

by Elizabeth E. Hogue, Esq.

Relief for Providers from Devastating Penalties?

A judge in the Northern District of Texas recently decided that even the minimum penalties mandated under the False Claims Act (FCA) violate the Eighth Amendment’s Excessive Fines Clause [see U.S. ex rel. Taylor v. Healthcare Associates of Tex. (N.D. Tex. Feb. 26, 2025)]. The FCA punishes providers for submission of information that is not true in order to get paid by the federal government.

Life Threatening Penalties

The penalties assessed against providers under the FCA may be described as “life threatening.” That is, it may be difficult for providers’ businesses to survive payment of such severe penalties. The minimum penalty increased from $13,946 to $14,308 in 2025. The maximum penalty per claim increased from $27,894 to $28,619.

Ex Post Facto

These increased penalties will be assessed for violations that occurred prior to the change, but that are assessed after they are in effect. These penalties certainly make it clear why it is difficult for providers to survive violations of the FCA.

False Claims

In the Taylor case above, for example, the defendants allegedly submitted false claims as follows:

As “incident to” a physician’s care without proper documentation
For services by providers who were not eligible to bill the Medicare Program
For services performed by medical assistants instead of qualified practitioners

FCA Math Doesn't Add Up

The jury found that one of the defendants, a primary care medical group practice, submitted 21,944 false claims for $2,753,641.86 in actual damages. After trebling the damages as required by the FCA, the Court said it would enter judgement against the defendant for approximately $8 million. The Court acknowledged, however, that penalties under the FCA are fines subject to the Eighth Amendment of the U.S. Constitution.

Grossly Disproportional to the Gravity

The Court then applied the following four factors to decide whether the “fine was grossly disproportional to the gravity of the offense” under the Eighth Amendment:

The essence of the defendant’s crime and its relationship to other criminal activity
Whether the defendant was within the class of people for whom the statute of conviction was principally designed
The maximum sentence, including the fine that could have been imposed
The nature of the harm resulting from the defendant’s conduct

Fraud...or a Reporting Error?

With regard to the first factor, the Court emphasized that the defendant’s misconduct involved violations of Medicare billing rules, but did not include billing for services that were not provided. In fact, the Court said that even though the defendant violated Medicare billing rules, the misconduct was “closer in gravity to something like a ‘reporting offense.’” There was, said the Court, no evidence that the defendant’s conduct was “related to other criminal or fraudulent activity.

Magnitude of Harm

The Court also focused attention on the fourth factor. The defendant’s harm was certainly significant, but the harm, according to the Court, did not necessitate a penalty “two orders of magnitude greater than the actual financial harm,” especially when the actual damages were substantial, i.e., one hundred times the amount of actual damages. That ratio was “grossly out of alignment with the ratios in other similar cases.” The Court imposed a civil penalty of $8,260,925.58 that represents less than 3% of the statutory minimum.

Final Thoughts

Whether other Courts follow the Taylor case described above remains to be seen, but it is quite clear that providers need relief from the penalties of the FCA.

# # #

No portion of this material may be reproduced in any form without the advance written permission of the author.

MedPAC Comments on CY 2026

by Kristin Rowan | Mar 22, 2025 | CMS, Editorial, Medicare Advantage, Regulatory

by Kristin Rowan, Editor

MedPAC Comments on CY 2026

MedPac Sends Recommendations to Congress

MedPAC makes recommendations to Congress and HHS on issues affecting the Medicare program. The March report for 2025 includes recommendations for hospice, home health, and SNFs, in addition to in-patient and out-patient hospital services.

Hospice

Using the exact terminology from the 2024 report, MedPAC recommends that Congress eliminate the update to the 2025 Medicare base payment rates for hospice. MedPAC pointed to a number of statistics to support the evaluation:

The number of hospice providers increased in 2023
Some of the growth in hospice providers occurred in states where CMS has concerns over program integrity
The percentage of patients using hospice increased by .8 percent nationwide, as did the days of care and visits per week
Medicare payments exceeded marginal costs by 14 percent

Opinion

The population of the U.S. is aging as more and more Baby Boomers qualify for Medicare; there is an increased need for hospice agencies to accommodate the volume of patients
Whether there are more hospices in states where program integrity is questioned does not impact the need for hospice care; program integrity reform changes this, not reimbursement rates
The rise in use, length of stay, and days of care explain the increase in the number of hospice; need, not profitability drives this growth
The average markup in 2022 was 72 percent above marginal cost

Marginal Cost

Marginal cost is the cost of adding one more unit of production. In simple terms, that would be the overall costs of adding one hour of care for a hospice patient. This would include scheduling, hourly wage, and other operational costs. MedPAC believes that if an agency adds one hour of care and make 14 percent more than their costs, that is sufficient.

Home Health

Keeping with tradition, MedPAC used the same language again from 2024 to recommend that Congress reduce the 205 Medicare base payment rate for home health agencies by 7 percent.

The number of HHAs participating in Medicare increased by 3.4 percent.
Most of the growth in HHAs was in LA County. Outside LA County, the number of HHAs decreased by 2.8 percent.
The number of 30-day episodes per beneficiary decreased by 1.8 percent, but is still higher than in prepandemic years
MedPAC was unable to compute the marginal profit for 2023
Quality of care (percent discharged to community) increased by 1.3 percent
The all-payer margin in HHAs was 8.2 percent, attracting investors
The projected Medicare payment margin for 2025 is 19 percent

Image of letters spelling health and wealth

Opinion

LA County has more HHAs, but the rest of the country has fewer. We believe if you ask The National Alliance for Care at Home, Bill Dombi, or any number of prior HHA owners, low reimbursement rates forced them out of business

Pandemic numbers skewed the need for care at home because everyone was at home; if you only look at prepandemic numbers compared with 2023 numbers, the need for home health is increasing
HHAs keep patients out of the hospital, which accounts for more Medicare payments and higher costs
Again, the average margin across the U.S. is 72 percent, but MedPAC somehow believes 8 percent will attract investors and buyers; volume is attracting buyers, not margins
The projected 2025 margin is 19 percent and MedPAC recommends lowering it to 14 percent, matching hospice, and is 58 percent lower margins than the average industry

One Point of Parity

Surprisingly, there is an overlap in thinking between providers and MedPAC. In the February 2025 comment on the CMS notice of proposed rulemaking for 2026, MedPAC addressed the coding intensity and increased Medicare Advantage payments.

Last summer, Editor Emeritus Tim Rowan reported on the inflated health conditions filed by payers. Medicare Advantage payers also routinely deny care that traditional Medicare plans would cover. MA payers are collecting on both the front and back ends of the “Bank of CMS.” According to the Center for Economic Policy Research, upcoding by MA plans costs CMS 106 percent of traditional Medicare costs. Quality bonus payments add an additional 2 percent. Operating surplus from enrolling healthier beneficiaries adds another 11 percent. Payments to MA plans are 19 percent higher. MedPAC agrees and urges CMS to further investigate coding intensity from MA payers.

Point of Contention

Although we agree with MedPAC’s assessment of MA coding intensity, that is where the similarity ends. Let’s take that recommendation one step further and require that MA plans pay hospice and home health providers a higher percentage of their risk-assessment adjustment and let the payers make their profits elsewhere.

It Could be Worse

Given the recent upheaval in D.C. and the fear that Medicare, Medicare Advantage, Medicaid, Social Security, and other benefits would be done away with completely, we are relieved to see the House Budget Bill passing without the drastic reductions to care at home.

From the Alliance

Following the passing of the House Budget Bill, The National Alliance for Care at Home issued a response statement. We’ve published the full response here for you.

# # #

Kristin Rowan has been working at The Rowan Report since 2008. She is the owner and Editor-in-chief of The Rowan Report, the industry’s most trusted source for care at home news. She also has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in content creation, social media management, and event marketing. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

Update on Public Participation in Rule Making

by Kristin Rowan | Mar 13, 2025 | Advocacy, CMS, Medicare Advantage, Regulatory

by Kristin Rowan, Editor

Update

Last week, we reached out to some of our contacts for responses to this change.

Former President of NAHC and current Senior Counsel at Arnall Golden Gregory Bill Dombi said:

It is difficult to discern the impact of the rescission of the waiver. One concern is whether the administration considers Medicaid a grant or benefit program thereby exempting it from APA public notice and comment rulemaking.

With respect to Medicare, if it is considered a benefit, there is still a Medicare statutory requirement of public notice and opportunity for comment through formal rulemaking that should effectively nullify the practical impact of the rescission of the waiver. All that said, we will need to see more before being to judge the impact.

Frequent guest author and Fellow, American Health Law Association, Elizabeth E. Hogue, Esq. had this to say:

Recission of the Richardson Waiver is not good news for providers.

Many federal agencies voluntarily committed to give notice and comment for actions that otherwise would be exempt. The US Department of Health and Human Services was one of the federal agencies that adopted this policy in October, 1970, in a memorandum commonly referred to as the “Richardson Waiver.” This policy was published in the Federal Register in 1971. HHS did not, however, promulgate the Waiver through notice and comment rulemaking.

The open process of give and take between agencies and providers under the Richardson Waiver resulted in resolution of important issues relatively informally. Now it appears that only policies mandated by statute will go through the rulemaking process. In other words, opportunities to resolve issues without formal resolution will be compromised.

The recission of the Waiver may also make administration of both the Medicaid and Medicare programs more complicated and less effective, especially in view of US Supreme Court decisions that say everything that hasn’t gone through the notice and comment process is not binding on providers.

# # #

Below is the original article, published March 6, 2025

Public Participation Rescinded

The Administrative Procedure Act (APA) requires that an agency public a notice of proposed rulemaking in the Federal Register; allow sufficient time for public participation via written data, views, or arguments; and then publish a final rule. Matters relating to agency management, personnel, or public property; loans, grants, benefits, or contracts; and for “good cause” are exempt from the reporting requirements. The Richardson Waiver, adopted in 1971, waived the exemption and instructed agencies to use the good cause exemption sparingly. Effective immediately, the Richardson Waiver is rescinded.

“The policy waiving the statutory exemption…imposes on the Department obligations beyond the maximum procedural requirements specified by the APA, adds costs [that] are contrary to the efficient operation of the Department, and impedes the Department’s flexibility to adapt quickly to legal and policy mandates.”

Robert F. Kennedy, Jr.

Secretary, Department of Health and Human Services

What it Means

Public participation is now optional. Agencies and offices of the Department of HHS can, if desired, use the public notice and comment procedures for these matters, but are no longer required to do so. The Department will continue to follow these procedures in all circumstances in which they are required to do so.

Law firm Hogan Lovells, experts in healthcare law, wrote about the potential implications for the health care industry in a recent blog post. According to the firm, it is unclear how HHS will interpret the “benefits” portion of the exemption. HHS, and specifically CMS, currently uses the notice and comment procedure for various benefits programs, including Medicare and Medicaid. Secretary Kennedy’s statement clearly calls out the limitation in impacting any other law requiring notice and comment periods.

Public Participation in Medicare Rules

Hogan Lovells indicates that few if any policies written under the Medcare Act will be impacted by this change. The Medicare Act operates under additional rulemaking requirements under section 1871(a) of the SSA. Additionally, Azar v. Allina Health Services, 587 U.S. 566 (2019) confirms that Medicare rulemaking is independent from the APA. Some policies are currently exempt from the notice and comment obligations under the Medicare Act and will remain exempt.

Public Participation in Medicaid and CHIP rules

Medicare and CHIP fall under Title XIX of the SSA, which does not contain its own notice and comment requirements separate from the APA. HHS has used the APA notice and comment rules for many of the changes made to the Medicaid program. HHS could interpret the “benefits” clause as exempting Medicaid changes from the rule. Hogan Lovells states it is currently unclear whether HHS will take this route. They also purport the courts have not ruled on whether APA excludes Medicaid from the notice and comment requirements, and may not agree with that exclusion. Until the term “benefits” is better defined, Medicaid, CHIP, the insurance exchange marketplace, and TANF, among others, may be impacted.

Department of Veterans Affairs

A notable exception to these changes is the rulemaking in the Department of Veterans Affairs as it relates to the Veterans Health Care act of 1992. This program implemented Federal contractor requirements that established pricing and contracting standards for drug manufacturers. The VA policies and rules have historically been enacted using guidance letters, avoiding the rulemaking process altogether.

Final Thoughts

There is too much that is yet unknown regarding this change to understand its full impact. There will be immediate changes, court rulings, further changes, and likely a lot of advocacy from national organizations fighting for transparency for Medicare, Medicaid, and other “benefit” programs. This will be an ongoing story and The Rowan Report will bring updates as they happen.

# # #

Kristin Rowan has been working at The Rowan Report since 2008. She is the owner and Editor-in-chief of The Rowan Report, the industry’s most trusted source for care at home news .She also has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in content creation, social media management, and event marketing. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

BREAKING NEWS: Kennedy Rescinds Public Participation in Rule Making

by Kristin Rowan | Mar 7, 2025 | Advocacy, Breaking News, CMS, Medicare Advantage, Regulatory

by Kristin Rowan, Editor

Public Participation Rescinded

The Administrative Procedure Act (APA) requires that an agency publish a notice of proposed rulemaking in the Federal Register; allow sufficient time for public participation via written data, views, or arguments; and then publish a final rule. Matters relating to agency management, personnel, or public property; loans, grants, benefits, or contracts; and for “good cause” are exempt from the reporting requirements. The Richardson Waiver, adopted in 1971, waived the exemption and instructed agencies to use the good cause exemption sparingly. Effective immediately, the Richardson Waiver is rescinded.

Robert F. Kennedy, Jr.

Secretary, Department of Health and Human Services

What it Means

Public Participation in Medicare Rules

Public Participation in Medicaid and CHIP rules

Department of Veterans Affairs

Final Thoughts

# # #

Kristin Rowan has been working at The Rowan Report since 2008. She is the owner and Editor-in-chief of The Rowan Report, the industry’s most trusted source for care at home news .She also has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in content creation, social media management, and event marketing. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

Treatment in Place from Emergency Medical Services

by Elizabeth E. Hogue, Esq. | Feb 14, 2025 | Clinical, Medicare Advantage, Regulatory

by Elizabeth E. Hogue, Esq.

Treatment in Place

Providers of services to patients in their homes are anecdotally familiar with situations in which patients need help at home, but do not qualify for home health services and have not arranged for or are unable to afford home care/private duty services. These patients need assistance, but do not need transport.

The Problem

The problem for Emergency Medical Services (EMS) is nonpayment for services if patients are not transported for services.

Can EMS Charge Without Transport

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services has weighed in on whether local EMS can meet this need and bill patients’ insurance for treatment in place (TIP) services. The OIG has “blessed” the provision and billing of these services in Advisory Opinion No. 24-09 issued on November 21, 2024.

Treatment in Place Requirements to Bill Insurance

Specifically, the OIG says that EMS may provide services to patients in their homes or TIP services and bill Patients’ insurers if the following requirements are met:

Charges to patients’ insurers would be limited for emergency responses only.
Charges for TIP services must be based on the level of care furnished to patients and cannot exceed amounts currently claimed for payment for the same levels of care furnished in connection with ambulance transports.
Charges are made regardless of whether patients are enrolled in commercial insurance plans or federal health programs.
EMS accepts payment for TIP services from patients’ health insurances as payment in full.
Patients will not be billed for any cost-sharing amounts under patients’ health insurance, including federal health care programs for covered TIP services, regardless of whether they are residents or nonresidents of the county where TIP services are provided.
EMS cannot later claim cost-sharing amounts waived as bed debts for payments under federal health care programs or otherwise shift the burden of cost-sharing waivers onto federal health care programs, other payors, or individuals by, for example, balance billing.

Cost-Sharing

In light of the above, the OIG first acknowledged that the prohibition on waivers of cost-sharing under the federal anti-kickback statute (AKS) is applicable and that the requirements of a safe harbor that addresses waivers of cost-sharing amounts for municipally owned ambulances are not met by the proposed arrangement. The OIG also said that the proposed arrangement would result in remuneration in the form of cost-sharing waivers for TIP services and TIP services provided at no charge to patients. Consequently, remuneration provided implicates both the AKS and the Beneficiary Inducements CMP.

Risk

Nonetheless, the OIG concluded that the arrangement involves a low risk of fraud and abuse. In addition to the above requirements, the OIG concluded that neither Medicare Part B nor the State Medicaid Program currently covers TIP services; only a handful of Medicare Advantage Plans and some Medicaid Programs currently cover TIP services. This means that, in most circumstances, the arrangement will result in no costs to federal health care programs and, in fact, may reduce costs by avoiding ambulance transport or subsequent hospital care. Patients may also receive care more quickly and efficiently, and at more appropriate levels of care when they receive TIP services.

Treatment in Place Cost-sharing Waivers

Finally, according to the OIG, waivers of cost-sharing for TIP services or the provision of free TIP services are unlikely to affect patients’ decisions to use future emergency ambulance services reimbursed by federal health care programs.

Providers are increasingly aware that patients need a variety of services in their homes. The OIG has opened another door!

# # #

No portion of this material may be reproduced in any form without the advance written permission of the author.

Is Medicaid Down for the Count?

by Kristin Rowan | Feb 6, 2025 | Breaking News, Regulatory

by Kristin Rowan, Editor

Medicaid Payment System Goes Dark

On Monday, January 27, President Trump, through the Office of Management and Budget, announced a temporary freeze on federal spending while his newly designated head of the Department of Government Efficiency ensures all spending follows the executive orders the President has signed. The memo was vague and caused widespread confusion across government departments. Almost immediately after the memo was circulated, Medicaid programs could not access the Payment Management Services web portal, the entity responsible for paying Medicaid claims.

The Memo

The language used in the memo on federal spending was broad and overreaching. As such, many federal organizations were unclear as to whether the memo applied to them. The message in the memo was that the administration intended to curb any spending that does not improve the day-to-day lives of the people. Throughout the day Monday, the White House sent clarifications about what programs would not be impacted. Among them were food assistance programs like SNAP, WIC, and Meals on Wheels, and Medicaid. The medicaid payment portal went down, despite this clarification.

Exclusions

Multiple state and federal agencies reached out to the White House for clarification following the release of the memo. Explicitly excluded from the freeze are direct benefit plans like Social Security and Medicare. In addition to the programs named in the memo, clarification on additional programs that would not be impacted included Medicaid. Despite the temporary website outage, claims were still being processed and payments were still being made.

Immediate Lawsuits

Almost simultaneously with the distribution of the memo, several non-profit organizations filed suit against the federal government. They called Trump’s action an “unlawful and unconstitutional” act, even temporarily. The pause on federal spending was set to go into effect at 5 p.m. ET on Tuesday. Minutes before, U.S. District Judge Loren L. AliKhan put a pause on the pause.

Temporary Freeze on the Temporary Freeze

To allow both sides time to construct an argument, the judge stayed the funding freeze until Monday, February 3. That morning, the judge will hear arguments and consider the issue. After the stay, attorneys general from 22 states and D.C. filed their own lawsuit to permanently block the freeze and prevent any future attempts to cut off already approved federal funding.

Then Comes the Thaw

If the judge allows the freeze to move forward, Trump has given every agency until February 10 to account for and explain all spending programs within their departments. Once the accounting has been reviewed, likely the OMB and the Department of Government Efficiency will determine which federal spending programs can resume operation.

There is no indication yet as to whether Trump will extend the February 10 deadline, given the delay in the courts. By the time the judge rules on Monday, however, we hope the White House will have issued additional details and guidance to avoid additional disruption to essential services like Medicare and Medicaid.

Final? Ruling

Early Monday, Judge AliKhan said she was not convinced by the argument that nonprofit groups have no case against the funding freeze since the OMB rescinded the memo. The administration argued that a brief pause on funding to align federal spending is within the law. The administration also suggests that the courts have no standing to block it. AliKhan has indicated that she will likely grant a longer temporary order to stay the funding freeze.

# # #

Kristin Rowan has been working at The Rowan Report since 2008. She is the owner and Editor-in-chief of The Rowan Report, the industry’s most trusted source for care at home news .She also has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in content creation, social media management, and event marketing. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

Medicare Advantage Lowers Home Health Care Use

by Kristin Rowan | Feb 6, 2025 | Hospice, Medicare Advantage

by Kristin Rowan, Editor

End-of-Life Care in Medicare Advantage vs Traditional Medicare

Using research from CMS, researchers from Mt. Sinai in New York and Brown University in Rhode Island studied the data of adults aged 66 and older who passed away and had Medicare coverage in their final year of life. Included in the study were people potentially eligible for home health care and not in a nursing facility, hospital, or hospice care setting. Data from close to 1.8 million people was analyzed. The researchers identified whether the participants received home health care and how many days of end-of-life care they received.

Home Health Higher in Traditional Medicare

Of the nearly 1.8 million participants, the average age was 82. 51.5% were female and 36.5% were enrolled in Medicare Advantage. In the final year of life, home health care use was recorded at 37.5% for MA enrollees and 41.7% for traditional Medicare.

When the researchers looked at different demographic groups within the data sets, home health care usage was higher in traditional Medicare in most groups. However, among American Indian and Alaska Native groups, Medicare Advantage had a slightly higher rate of home health use at 37.9% compared with 37.1% in Traditional Medicare.

Conversely, in the Asian or Pacific Islander demographic, home health use rate was 32.6% in MA and 41.8% in TM. Similarly, the rate of use among the Hispanic group was 33% in MA and 44% in TM. Following a similar trend, in the non-Hispanic Black group home health usage in MA was 38.8% compared with 42.9% in TM. Likewise, among the non-Hispanic White group, home health use in MA was 37.9% versus 41.5% for TM. For those of unknown race, usage was 36.1% in MA compared with 40.1% in TM.

Days of Care Lower in Medicare Advantage

Home health users across all racial and ethnic demographic groups enrolled as Medicare Advantage beneficiaries had fewer days of care in home health than those enrolled in Traditional Medicare. The stand-out group in this part of the research was those of Hispanic descent, who averaged 81.9 days in home health care in Medicare Advantage compared with 111.9 days in Traditional Medicare.

Implications

The researchers indicated some limitations in the study, namely that data was pulled from pre-covid patients because of the changes in home health during covid. The study should be repeated with post-covid data. One of the researchers received personal fees while serving as a senior advisor to CMS. Another received personal fees as a section editor for UpToDate. A third researcher reported receiving personal fees from Abt and UpToDate.

Despite these limitations, the implications of the study show that end-of-life care is not the same between Medicare and Medicare Advantage patients. Medicare Advantage is largely operating on a Value-Based Purchasing Model. The fewer services the beneficiary receives, the more money the primary doctor, hospital, and payer keep. It is not surprising, therefore, that MA patients get fewer services for less time. Patients who switch from Traditional Medicare to Medicare Advantage, especially if they are your patients, should be informed that they are still eligible for home health care and hospice care, but they may have to ask for it.

# # #

Kristin Rowan has been working at The Rowan Report since 2008. She is the owner and Editor-in-chief of The Rowan Report, the industry’s most trusted source for care at home news .She also has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in content creation, social media management, and event marketing. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

Medicare Advantage Increase for Payers, not Providers

by Kristin Rowan | Jan 23, 2025 | Artificial Intelligence, Breaking News, CMS, Medicare Advantage, Regulatory

by Kristin Rowan, Editor

CMS Announces Medicare Advantage Pay Hike

On January 13, 2025, CMS announced its plans to increase payments to Medicare Advantage plans by 4.33%. Policy changes for Medicare Advantage and Part D include changes in how the agency calculates payments to health plans. A spokesperson from CMS said that the policy change provides access to affordable, high-quality care. The changes, however, don’t increase payments to the people actually providing the care, only to the payers.

Opposition

While major health plans across the U.S. were thrilled with the announcement and saw substantial stock price hikes immediately after, not everyone is on board. The American Medical Association (AMA) outlined how physicians who treat Medicare patients are getting pay cuts from CMS for the fifth year in a row. Meanwhile, HHS OIG released a report finding that MA insurers profited $7.5 billion from risk-adjusted payments in 2023.

“It’s unbelievable they’re giving insurance companies that had record profits an increase while at the same time cutting payment to physician practices that are struggling to survive. This contrast highlights the urgent need for Congress to prioritize linking payment to physician practices to the cost of providing care.”

Bruce Scott, M.D.

President, American Medical Association

Out-of-Pocket Cost Increase

In addition to the higher payments, the advance proposal includes an increase in the Part D deductible from $590 to $615. With this proposal, the out-of-pocket maximum will increase from $2,000 to $2,100 as well. Cost sharing after the deductible is reached but before the out-of-pocket max is reached will also increase. There is no increase for beneficiaries whose income is less than 100% of the Federal Poverty Level.

Coverage Increase

The CMS advance proposal calls for coverage and policy changes. Medicare and Medicaid programs will now cover anti-obesity medications. The plan imposes stricter rules on MA policies to prevent denial of reasonable and necessary services that would be covered under Medicare Part A and B. Finally, imposed guardrails on the use of AI. The guardrails will ensure AI systems are unbiased in patient care decisions. Additionally, the guardrails will ensure they do not perpetuate existing inequity in access to and receipt of medical services. The American Hospital Association appplauded this last change.

“The AHA commends CMS for taking important steps to increase oversight of 2026 Medicare Advantage plans to help ensure enrollees have equal access to medically necessary health care services. The AHA has previously raised concerns about the negative effects of certain Medicare Advantage practices and policies…that are more restrictive than Traditional Medicare and can compromise enrollee access to Medicare-covered services.”

Ashley Thompson

Senior Vice President, American Hospital Association

Changes are not Definite

Even though CMS has announced these changes to start in January, 2026, they are not set in stone. As of January 20, 2025, we are operating under anew administration and the changes under Trump have already started. CMS intends to continue it’s three-year plan to update the MA risk adjustment model and the implementation of the Inflation Reduction Act. However, it seems likely that the Inflation Reduction Act will be replaced with a different plan for inflation.

Jeff Davis, director of health policy at McDermott+ believes it is likely that Trump’s team will throw out the updates to MA and Part D as well as Biden’s proposed staffing mandate for SNFs. In the first 24 hours of his Presidency, Trump revoked both Biden’s “Strengthening Medicaid and the Affordable Care Act” and “Continuing to Strengthen Americans’ Access to Affordable, Quality Health Coverage” executive orders. He also rescinded the Drug Pricing Model executive order that covered obesity drugs, lowered the price of some drugs, and accelerated FDA approval for drugs that address unmet medical needs.

As Yet Unknown

As was to be expected, many of Trump’s initial 78 executive orders are already facing lawsuits from various entities. There are as of yet no definitive answers to changes in Medicare, Medicare Advantage, or other policies that impact healthcare and care at home. The Rowan Report will continue to follow these stories as they unfold.

# # #

Care at Home Coming to Medicaid?

by Elizabeth E. Hogue, Esq. | Jan 16, 2025 | Advocacy, Regulatory

by Elizabeth E. Hogue, Esq.

Brown v D.C. Decision is Another Boost for Care at Home

In Olmstead v. L.C., the U.S. Supreme Court decided that unjustified segregation of disabled persons constitutes discrimination in violation of Title II of the Americans with Disabilities Act.

The Court said that public entities must provide community-based services to disabled persons when such services are:

- Appropriate;
- Unopposed by disabled persons; and
- Reasonable accommodations taking into account resources available to public entities and the needs of other disabled individuals receiving services from the entity.

This decision gave a tremendous boost to the provision of home and community-based services of all types. Since Olmstead was decided in 1999, there have been more court decisions that require services to be provided at home based on this opinion.

Support for Olmstead

One recent decision is Brown, et al v. District of Columbia (Brown v D.C.) that was decided on December 31, 2024. The Court decided that the District of Columbia violated the rights of D.C. residents with disabilities under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. According to the Court, D.C. failed to inform nursing facility residents who receive Medicaid that they could leave nursing facilities and receive home health services in their communities and failed to assist them to do so. The D.C. government also failed to help them access community-based services and housing options needed to transition back to the community.

The Court recognized that individuals living in nursing facilities often need help learning about and applying for available community services to help them transition out of the institution and into their own homes. Even when residents learn about services, navigating the complicated Medicaid-funded long-term care program can cause confusion and anxiety that sometimes causes facility residents to lose hope that they can live in their own homes again.

Consequently, the decision applies to

“All persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaid-covered home and community-based long-term care services that would enable them to live in the community; and (3) would prefer to live in the community instead of a nursing facility but need the District of Columbia to provide transition assistance to facilitate their access to long-term care services in the community.”

Brown v D.C. Says That D.C. Must

- Develop and implement a working system of transition assistance for [nursing home residents that], at a minimum
  - informs DC Medicaid-funded residents, upon admission and at least every three months thereafter, about community-based long-term care alternatives to nursing facilities
  - elicits DC Medicaid-funded nursing facility residents’ preferences for community or nursing facility placement upon admission and at least every three months thereafter
  - begins DC Medicaid-funded nursing facility residents’ discharge planning upon admission and reviews at least every month the progress made on that plan
  - provides DC Medicaid-funded nursing facility residents who do not oppose living in the community with assistance accessing all appropriate resources available in the community
- Ensure sufficient capacity of community-based long-term care services for [residents] under the EPD, MFP, and PCA programs and other long-term care service programs, to serve [residents] in the most integrated setting appropriate to their needs, as measured by enrollment in these long-term care programs.
- …[D]emonstrate [its] ongoing commitment to deinstitutionalization by, at a minimum, publicly reporting on at least a semi-annual basis the total number of DC Medicaid-funded nursing facility residents who do not oppose living in the community; the number of those individuals assisted by [DC] to transition to the community with long-term care services [described above]; and the aggregate dollars [DC] saves (or fails to save) by serving individuals in the community rather than in nursing facilities.

Final Thoughts on Brown v D.C.

As indicated above, there continues to be a clear mandate for Medicaid Programs to provide services to individuals in the community, which is a significant impetus to provide services to patients in their homes. This mandate, however, does not directly address practical aspects of implementation, such as reimbursement at appropriate rates for providers or availability of staff to provide services at home. Nonetheless, the Olmstead and Brown cases provide an important basis for further development of in-home services of all types to meet the needs of disabled persons.

No portion of this material may be reproduced in any form without the advance written permission of the author.

« Older Entries

Next Entries »