UnitedHealth Study: Is Medicare Advantage Killing Seniors

by Tim Rowan, Editor Emeritus

Is Medicare Advantage Killing Us?

Dr. Steve Landers has long been eloquent in his speaking and writing about the importance of Home Health over the years. Though I was already impressed, I gained a new level of respect this week. Simultaneously with his debut as CEO of the new Alliance, Dr. Landers released an article about a recent study on the impact of Medicare Advantage on Medicare beneficiaries.

It is an article that everyone in our healthcare sector should read.

In “Home Health Cuts and Barriers are Life and Death Issues for Medicare Beneficiaries,” Dr. Landers points readers toward a study conducted by Dr. Elan Gada of UnitedHealthcare’s Optum Group. The results are disturbing. That the findings were released by a Medicare Advantage company is surprising.

Yes, Virginia, Home Healthcare Really Does Save Lives

Landers cited the study’s primary finding. “Medicare Advantage beneficiaries in their plan who did not receive needed home health care after hospitalization were 42% more likely to die in the 30 days following a hospital stay than those who received the prescribed care.” If a drug proved to be as effective as post-discharge home healthcare in saving lives, Landers wrote, “it would dominate the news, restricting access would be considered immoral, and health officials would be pushing its adoption.”

Medicare Advantage Enrollees Go Without

There are a number of reasons a hospital discharged patient might not receive home healthcare, including system issues and patient refusal. However, Dr. Gada’s study also discovered that MA customers go without post-discharge home health at a higher rate than traditional Medicare beneficiaries. Traditional Medicare beneficiaries go without in-home care about 25% of the time. Medicare Advantage beneficiaries 38% of the time. Landers notes that this data is a few years old and that the denial rate for MA customers is likely higher today.

Stop the Killing

We know the life-saving impact of post-hospital home healthcare. The question becomes: how does our little corner of the U.S. healthcare system help regulators and payers to know it as well as we do? At this week’s inaugural conference of the National Alliance for Care at Home, at least three education sessions discussed Medicare Advantage. All three offered strategies for negotiating with insurance companies and surviving under their oppressive rate structures and their frequent care denials.

UnitedHealth Group Medicare Advantage Landers

These Are Bandages, Not Cures

In previous opinion pieces, I have quoted revelations in government lawsuits against MA divisions of insurance companies. These prove the program that was originally launched to extend the lifespan of the Medicare Trust Fund actually costs CMS 118 percent of what traditional Medicare costs. At the same time, insurance company reports to shareholders proudly point out that their MA division is their most profitable.

One of last week’s most read stories was the report from UnitedHealth Group on their astounding Q3 growth.

In the Long Run

Learning to cope with MA care denials and below-cost visit payments is fine for those focused on making next month’s payroll. An entirely different tactic is needed for those focused on the care needs of their elderly parents or who are approaching age 65 themselves. The question must be asked, “Why does Medicare Advantage exist?”

Medicare Advantage Lobbyists

AHIP is the insurance company lobby. It put extreme pressure on Congress in 2009 when the Affordable Care Act was being written. That pressure resulted in then-President Obama removing a core plank from his bill. Obama struck the public option healthcare insurance plan in order to win enough votes to get the bill to his desk.

More $ Makes More $

That lobbying effort continues today precisely because MA is so profitable. How does it bring in so much cash? One after another, all of the large insurance companies have been caught padding patient assessments, the very fraud Home Health is so often accused of. Their monthly checks are determined by how much care they predict their covered lives will need, and they exaggerate it. Later, when it comes time to treat these same customers, MA plans deny care that would have been covered by traditional Medicare. They book profits at both ends, and they gladly pay the minimal fines when the practice is exposed.

The Reality of Medicare Advantage Fraud

To make each covered life more profitable, MA plans have begun calling customers to offer “free” nurse visits. These are essentially re-assessments where the MA staffer is rewarded for “finding” additional illnesses. This is not theoretical. My brother was offered a $50 gift certificate to CVS if he would allow his wife’s MA plan representative to drop in and chat with her, to “make sure she was getting all the benefits she was entitled to.”

Dr. Steven Landers: Call for Advocacy

In his article and in his speeches this week, Dr. Landers made it quite clear what must be done. EVERY person whose livelihood depends on the Medicare Trust Fund must make their voice heard. Letters and phone calls to Congress, to the Senate, to CMS, and to the Secretary of Health and Human Services, telling them you do not want to happen to your community what happened in Maine. After years of negative profit margins, in a state where MA adoption is at two-thirds, Andwell Health Partners ceased business in a wide swath of the northern regions of the state. Andwell was the only Home Health provider there.

The combined advocacy strength of NAHC and NHPCO is not enough to tip the scales. Your input is crucial.

Here's How it Works:

  1. Your letter explaining the damage coming from shrinking CMS reimbursement and MA care denials will be opened by a Congressional staffer.
  2. The staffer will read only enough of your letter to see its topic and which side of that topic you are on.
  3. No need to be lengthy or eloquent
  4. Put your topic and your position in your first paragraph
  5. The staffer will add a checkmark in the pro or con side of their Home Health ledger.
  6. The Congressperson, Senator, HHS Secretary will see a one-page summary of the numbers.
  7. When the numbers are small, the summary goes into a file
  8. When the numbers are large, the elected or appointed official will pay attention
  9. In rare cases, you may even get a phone call
UnitedHealth Group Advocacy Medicare Advantage

Dr. Landers, in His Own Words

The article Dr. Landers wrote detailing all of these includes wording suggestions for your message in your letter and/or call. For convenience, I have included one paragraph below,* but I urge you to spend three minutes reading the entire inspiring and frightening piece. In person, he explained all this in an emotional appeal. He said he cannot emphasize enough the importance of universal participation in our new organization’s advocacy effort. Based on what we have learned about post-hospital nursing care in the home, your letters and phone calls are a matter of life and death.

Excerpt

*To save lives and avoid unnecessary suffering, Medicare officials must reverse their plans to cut Traditional Medicare home health payments for 2025 and ensure payments are stable after adjusting for the dramatically increased healthcare labor cost inflation experienced over the past 5 years. Additionally, Medicare officials and lawmakers must study and address the possibility of the disproportionate administrative and financial barriers to home health in Medicare Advantage.

We are fortunate to have leaders in Congress like Senator Debbie Stabenow, Senator Susan Collins, Representative Terri Sewell, and Representative Adrian Smith who are working to champion a comprehensive bi-partisan legislative fix. Our leaders in Washington must act swiftly, before the end of the year, to save lives and avoid further destabilizing home health services for Medicare beneficiaries.

# # #

Tim Rowan, Editor Emeritus

Tim Rowan is a 30-year home care technology consultant who co-founded and served as Editor and principal writer of this publication for 25 years. He continues to occasionally contribute news and analysis articles under The Rowan Report’s new ownership. He also continues to work part-time as a Home Care recruiting and retention consultant. More information: RowanResources.com
Tim@RowanResources.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report.homecaretechreport.com One copy may be printed for personal use: further reproduction by permission only. editor@homecaretechreport.com

National Alliance for Care at Home: An Interview with Dr. Steve Landers Part 1

by Kristin Rowan, Editor

Alliance CEO Landers

For more than a year now, The Rowan Report has been providing updates on the merger between the National Hospice and Palliative Care Organization (NHPCO) and the National Association for Home Care & Hospice (NAHC). This week, we attended the first National Alliance for Care at Home (The Alliance) Annual Home Care and Hospice Conference and Expo. We had the opportunity to sit down with Dr. Steve Landers, inaugural Chief Executive Officer of The Alliance.

Dr. Steven "Steve" Landers

Dr. Steven Landers brings his almost 20 years of experience to The Alliance as its first CEO. Dr. Landers is a board-certified physician in family medicine, geriatric medicine, and hospice and palliative medicine. He has dedicated his career to seeking home- and community-based solution to traditional healthcare. His focus is on providing compassionate, dignified, and cost-effective care to patients.

Dr. Landers graduated from Case Western Reserve University School of Medicine, where he completed a geriatric medicine fellowship at the Cleveland Clinic.

Dr. Landers is no stranger to NAHC and NHPCO, having previously served on the board of directors for NAHC.  He has met with Congress, state legislatures, CMS, and PAC officials, providing testimonies, discussing home care policy and regulation, and advocating for care at home.

Steve lives in Little Silver, New Jersey, with his wife, Allison, and their three sons. His hobbies include golfing, fishing, hiking, traveling, enjoying good food and watching horse racing. When he is not taking part in these activities, you can find him cheering on his sports teams — the Browns, Cavaliers, Guardians and Indiana Hoosiers.

The Alliance Landers
The Alliance Landers

Dr. Steven Landers: On the Record

The Alliance Landers
The Rowan Report:

What do you know about the status of the ongoing lawsuits, going back to the 2024 final rule?

Dr. Steven Landers:

One, we should probably bring Bill [Dombi] into it because he’s truly a technical expert on it and I’m still getting up to speed on it. My understanding is there is no active lawsuit at the moment. We were asked to go back and take some additional administrative steps, which we’re doing. Then we’ll be able to evaluate what further legal paths are possible.

RR: 

That leads me to, not a question, but an observation I’d like you to comment on, Steve. For 45 years, the organization has been run by attorneys and the emphasis in lobbying and advocacy has been ‘you need to stop this cut because it’s hurting businesses and also it’s hurting patients.’ The way you’re talking, you emphasize as you begin with how it’s hurting patients. And so I’m wondering if the organization being run by a physician and not an attorney indicates that different emphasis going forward.

Steve: 

I certainly am going to do everything I can to tell the story of how policies impact patients and families. That will be part of what I try to do every single day using my experiences as a physician to do that.

RR:

Would it be exaggerating to say “new day, new emphasis” at The Alliance?

Steve:

Well, The Alliance is new in and of itself, so The Alliance is a new day for the industry, a hundred percent. We brought together two legacy organizations. The opportunity to have a stronger voice is very real and certainly I am going to bring a clinical perspective. I’m also a family caregiver. I have my own personal experiences with home care and hospice that have instructed how I think about these things.

And there is every opportunity here to get stronger, to try to make a bigger impact. I would not diminish the truly heroic work that’s been done by advocates within our associations in the past. There’s a lot of love and care that’s happening out in our country because of the leadership that’s been in place. But as you can see by some of the things that we’re talking about, we need to do better. We need to find another way to tell these stories to somehow get somebody to listen.

The Alliance
RR:

You recently released a statement about your position as CEO of The Alliance and your vision going forward. There was a commitment attached to that. Can you speak to that?

 

Steve: 

Yeah, so that’s one of the things that I’m really happy we’re doing very early in our work with the Alliance. For membership, whether to join or to renew membership, we are requiring an attestation from our members around their commitment to quality and to compliance. We’re requiring any provider member to attest to having a program in place for quality and compliance. And we’re requiring that they attest that they monitor the OIG exclusion list and don’t take referrals for employees that are people that are on that list. Also for home health and hospice providers, we’re asking that they attest that they do their level best to participate in the Medicare Home Health and the Medicare Hospice Quality Reporting program.

In order to make a difference on behalf of our members and make a difference on behalf of the people that need care at home, we have to have as credible and high integrity of a voice as possible. And so this is just one simple step of additional things that we’ll consider going forward. We want to make sure that our alliance, our coalition is high integrity and has a deep commitment to quality and compliance.

RR:

It’s one thing to ask people to sign an attestation. It’s another to find the bad players and help CMS to get rid of them.

Steve:

And we’re right there as a partner in that. I think you’ll see more announcements from us in the future about what we’re doing to help with that. I mean, on one hand, we’ve made many proposals around fighting fraud and hospice in particular. If you followed the hospice policymaking, both Legacy NAHC and Legacy NHPCO over the last year have made many policy recommendations. And you’ll definitely see us both advocating for anti-fraud measures as well as having resources within our association to focus on those topics.

The Alliance Landers
Interviewer 1:

Just to clarify, did either of the legacy organizations have this same kind of attestation?

Steve:

No, this is new. The impact of the legacy organizations cannot be questioned. It’s been amazing. But, it’s a new day and we are looking at ways to increase our impact. So, this is a new part of our membership process that we feel strongly about to just take another step to ensure that our coalition, our membership, is of the highest integrity possible. We are walking the walk and talking the talk with respect to quality and compliance.

RR:

Thank you, Dr. Landers

This article is part 1 of 2 interviewing Dr. Steven Landers. Read the rest of the interview here.

# # #

Kristin Rowan, Editor
Kristin Rowan, Editor

Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently taken on the role of Editor of The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

An Interview with Dr. Steven Landers, Part 2

by Kristin Rowan, Editor

Medicare Advantage is Killing Us...Literally

This is part 2 of 2 in the interview with Dr. Steven Landers. You can read part 1 here.

Medicare Advantage article by Dr. Landers

Earlier this week, Dr. Landers published an article in the NAHC Report. The article cited three studies and analyses on the number of enrollees in both Medicare and Medicare Advantage who do not receive the care to which they are entitled. During our recent interview with Dr. Landers, he addressed this article.

Dr. Steven Landers: On the Record

The Rowan Report:

You wanted to address something you recently wrote. Is this the same topic you mentioned the opening session, or is this something else?

Dr. Steven Landers:

No, this is a focused piece on the emerging research that we’re seeing around when people miss out on home health. It’s a life and death issue. I want to be sure that we, as an alliance, I, as a physician, and us, as advocates, that we are conveying that these issues around home health cuts and barriers are potentially deadly. This is not a trivial matter. It’s not an administrative or technical financial issue. It’s about people’s lives.

RR:

The article mentioned a study that said that the numper of people not getting the home care that they’re entitled to is almost double with Medicare Advantage enrollees over traditional Medicare.

Steve:

That was from a study that’s referenced there from a few years ago. The Partnership for Quality Home Health Arcadia Analysis that came out this year actually showed that those trends are worsening. We know that they’re not getting the needed care in Medicare Advantage and traditional Medicare.

In both cases it’s too high, but it’s higher in Medicare Advantage. It’s more common that people don’t get the prescribed care in Medicare Advantage. And we also know that that’s going up in both traditional Medicare and Medicare Advantage. The access has gotten worse because of the Medicare home health policy and because of the way that Medicare Advantage has grown and handled these issues.

Medicare Advantage Landers
Interviewer:

I guess the big giant question is what do we do, especially when margins for both traditional Medicare and Medicare Advantage are so low?

Steve:

One, we’ve got to start improving access to home healthcare. And the way that we do that is we end this march of payment cuts that are being set forward by Medicare. I mean, right now the leaders of Medicare are in their rulemaking process and they have choices to make. They can either do things that reverse this trend and put us on a path to better access or I think continuing these cuts will hurt beneficiaries.

And the other piece is the Medicare advantage front. We need more scrutiny and evaluation and potentially oversight here to make sure Medicare Advantage beneficiaries have access to high quality home healthcare.

“The results of this study demonstrate that among MA members referred to home health after acute hospitalization, those who did not receive home health services experienced higher mortality and lower readmissions than those who received these services.”

Unfulfilled Home Health Referrals Lead to Higher Mortality Among Medicare Advantage Members

Elan Gada, MD, Paul Pangburn, MHA, Chris Sahr, MS, MBA, Chad P. Schaben, MPH, Richard Young, MS

RR:

Where does the problem lie?

Steve:

People don’t get home health when it’s prescribed and mortality rates are substantially higher. There could be [anecdotal] reasons that this is happening. I’ve tried to think of them. I can’t really come up with them when you see it in three different analyses, especially one done within the Medicare Advantage plan. They have great data. It was well thought out and this is serious business and it really should be a kitchen table discussion for families like ‘what’s going here?,’ because obviously home healthcare is a beloved service that families care deeply about.

We’ve seen home care become a presidential campaign issue because it’s good policy and also because the folks running, Vice President Harris, who brought it up, and former President Trump, who chimed in sort of a me too, being enthusiastic about the concept. They’ve got to know that this polls well, that the families care about this stuff.

Editor Emeritus Tim Rowan provides an analysis of the study from UnitedHealth Group here.

# # #

Kristin Rowan, Editor
Kristin Rowan, Editor

Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently taken on the role of Editor of The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Introducing “The National Alliance for Care at Home”

by Tim Rowan, Editor Emeritus

National Alliance for Care at Home

The merger of the National Association for Home Care and Hospice and the National Hospice and Palliative Care Organization, which was inked on July 1, became official this week in Tampa, Florida. The new National Alliance for Care at Home said farewell to retiring NAHC President Bill Dombi and gave a rousing welcome to incoming Alliance CEO, Steven Landers, MD. Both Bill’s farewell address and Dr. Landers’ introduction speech ended with the same theme. We do what we do for the good of our patients. Yes, there is money. Yes, there are politics. In the end, our legacy and our future are about people.

Dr. Steven Landers

Integrity, Quality and Compliance

That future will begin with a commitment to patient care excellence. Dr. Landers closed his opening address with an announcement. From now on, every member, upon beginning or renewing their annual membership, will be asked to sign an attestation pledging their company and themselves personally to commit to Integrity, Quality, and Compliance. “Our members will be known to the world as the best in the industry,” he proclaimed. “They will assure patients, families, and payers that they participate in Medicare and Medicaid quality performance standards.”

In a press conference the next day, Dr. Landers elaborated that NAHC and NHPCO have always worked with public and private payers and law enforcement agencies to rid our industry of those who are not in it for noble reasons. Those cooperative efforts will continue, he told the reporters. The new attestation will further assure the world that members of The Alliance publicly join that mission. One is reminded of a code of conduct common to all our national military academies. “We will not lie, steal, or cheat, nor tolerate among us anyone who does.”

Emphasis on Advocacy

The Alliance is new, and Dr. Landers candidly admits he is gradually learning his new role as he goes along. But he is guided by a commitment to care in the home that has been with him since medical school. “I didn’t want to be just another cog in the system,” he told 2,000+ attendees. “The first time I went along on a home visit, I immediately realized that this is what I wanted to commit my career to.” Through his years at the VNA and Cleveland Clinic, he saw the power of in-home care, including its ability to extend live expectancy and reduce the total cost of care.

Bill Dombi

A Semi-Farewell at Best

National Alliance for Care at Home Dombi

Bill Dombi will serve the new Alliance through the end of this year before fully entering retirement. Following his closing address on the last day of the conference, during which he summarized his 38 years with NAHC (years that began with a promise to his wife Lynn that they would only have to leave their home in Connecticut for the DC area for three to four years), I asked him what he planned to do that first day in January. He said that he accumulated a ton of frequent flyer miles during his career and that they would love to travel somewhere other than state and national association conference cities.

He also mentioned the ongoing legal actions he initiated to force CMS to develop more honest formulae for calculating Home Health reimbursement and added, “It is very difficult to change litigators in the middle of a lawsuit.” Draw your own conclusion but take it from one who knows how difficult it is to completely walk away from this mission and its people. We may not have heard the last of William A. Dombi.

# # #

Tim Rowan, Editor Emeritus

Tim Rowan is a 30-year home care technology consultant who co-founded and served as Editor and principal writer of this publication for 25 years. He continues to occasionally contribute news and analysis articles under The Rowan Report’s new ownership. He also continues to work part-time as a Home Care recruiting and retention consultant. More information: RowanResources.com
Tim@RowanResources.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. homecaretechreport.com One copy may be printed for personal use: further reproduction by permission only. editor@homecaretechreport.com

NHPCO and NAHC Announce New Name and Website

by Kristin Rowan, Editor

The Alliance

Since the announcement that the National Hospice and Palliative Care Organization and the National Association for Home Care and Hospice would merge, the default name for the combined entities has been “The Alliance.” NAHC President Bill Dombi and Interim NHPCO CEO Ben Marcantonio, along with a transition board and other members have been working since August of 2023 on the merger. In June of 2024, the two organizations signed an official affiliation agreement.

Alliance Updates

In the last year, the two organizations have spoken about the work they’ve been doing to create the new affiliation. They jointly hosted a town hall to answer questions, and Bill Dombi has spoken at state and national association meetings about the merger. On August 26, 2024, The Alliance named its inaugural CEO, Dr. Steven Landers.

National Association for Care at Home (NACH)

Our industry loves its acronyms and this one rolls off the tongue like we’ve been using it for years. Although, we may all need to perfect the German guttural sound to differentiate it from NAHC.

In a press release on Sept. 5, 2024, the two associations officially announced that The National Alliance for Care at Home (NACH) is the new name of the combined organizations. Along with this announcement, The Alliance has also launched its new logo (below) and new website at www.AllianceForCareAtHome.org.

From The Alliance

Statements from both organizations outline the path forward and the mission and vision for the new affiliation:

    • The National Alliance for Care at Home will Combine the Strengths of the Two Largest National Organizations Representing Healthcare Providers Delivering Care Primarily in Homes
    • The Alliance Will Provide Unparalleled Resources and Representation to Support the Care-at-Home Community
    • This Alliance will be the leading authority on transforming care in the home. We will implement that mission under a new name that welcomes providers across the care continuum to join – the National Alliance for Care at Home
    • The Alliance will be your advocate, your resource, and your network to help you reach your goals

The new logo for NACH is, according to the press release, both an homage to the past and a symbol for the future. It creates a visual representation of both NAHC and NHPCO. The star shape of the logo is representative of the stars on the American flag, part of the NAHC logo. The visual aesthetic of the logo is reminiscent of the lotus flower from the NHPCO logo. The individual sections of the logo represent people holding hands, the visual representation of the coming together of types of care. The white space in the middle is meant to symbolize a house or home.

The logo is based on guidance from a workgroup comprised of members from both organizations, whose input has helped shape the Alliance brand.

The National Alliance for Care at Home

About Us

This press release also included a new boilerplate, describing the National Association for Care at Home, rather than two separate descriptions of each organization. This is probably still a temporary description, as it mentions that they are still in the process of combining operations and Communications Officers from both separate organizations are listed as press contacts. 

More to Come

Despite the announcement of the new CEO and the new name, the merger is far from over. There are logistical and operational hurdles still to overcome, a new board to enstate, the combining of assets and competencies, and a restructuring of existing employees. We will continue to report on press releases coming from NACH.

# # #

Kristin Rowan, Editor
Kristin Rowan, Editor

Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently taken on the role of Editor of The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Chevron Deference Derailed

by Kristin Rowan, Editor

Chevron Deference

“A government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable.”

This statement followed the unanimous (minus the three who did not take part in the decision) U.S. Supreme Court decision in the Chevron U.S.A., Inc. v. National Resources Defense Council. The case is known for establishing the extent to which a federal court should defer to a government agency’s interpretation of an ambiguous statement when constructing statutes.

Breaking Down Chevron Deference

For those of you who don’t have a law degree, here’s what that means:

  • When a statutory term (required by law) is not explicitly defined and explained by Congress, there is room for interpretation
  • When a government agency interprets that statutory term, the interpretation may come under question
  • As long as the interpretation is not arbitrary (random), capricious (impulsive or unpredictable), or contrary to the statute (opposite the intent when put into practice), federal courts should give more weight to the government agency’s interpretation than to any other interpretation

Implications

At the time, the Supreme Court argued that if Congress leaves a term open to interpretation, it is either stated openness to interpretation, or an implied openness to interpretation. If a statute is implicity open, the intent of Congress is to allow a government agency to create provisions and regulations from that statute as they see fit. 

No one foresaw the impact this ruling would have on commerce and regulation in the U.S. To date, the Chevron Doctrine has been cited nearly 18,000 times in federal court decisions. The application of a statute based on agency interpretation could no longer be questioned or changed by judicial review.

Chevron Deference in Home Health

Since the advent of the PDGM model, CMS has calculated payment rates based on its interpretation of budget neutrality. The National Association for Home Care and Hospice has disputed the validity of both the interpretation of budget neutrality and the formulas used to calculate it.

Last year’s 2024 CMS Proposed Rule cut payment rates even further with a 2.890% Budget Neutrality permanent payment rate adjustment and a temporary rate adjustment to account for alleged overpayments from 2020-2022.

The lawsuit filed against CMS in response to the 2024 Final Rule was dismissed. NAHC began pursuing an administrative review with CMS. However, CMS has already stated that their final position is that budget neutrality has been calculated within the law. 

NAHC Comment: 2023 CMS Rule

“That proposal also fails logically in that it puts care access in severe jeopardy in applying a budget neutrality reconciliation methodology that takes PDGM-induced behavior changes to assess what otherwise would have been expended by Medicare in the absence of PDGM. In doing so, CMS fully fails to meet its obligation to ensure that the transition to a new payment model is budget neutral.”

  1. NAHC Comment Source

Chevron Deference Repealed

In a landmark ruling on Friday, June 28. 2024, the Supreme Court removed the power of federal agencies to interpret laws and ruled that the courts should rely on their own intrepretation of ambiguous laws. Justice Elena Kagan, who dissented the ruling, predicts this change “will cause a massive shock to the legal system.”

Chief Justice John Roberts explained in his opinion that the Chevron Deference is inconsistent with the Administrative Procedure Act (APA). The APA is a federal law which contains instructions for courts to review actions by federal agencies. According to Roberts, the APA directs courts to decide legal questions using their own judgment. Therefore, he noted, agency interpretations of statutes are not entitled to deference. “…it remains the responsibility of the court to decide whether the law means what the agency says,” concluded Roberts.

NAHC to Refile Lawsuit after Chevron Deference Repeal

2024 Final Rule

In April, 2024, the lawsuit filed against CMS regarding the methodology for calculating budget neutrality was dismissed. Now, NAHC can refile the lawsuit and force CMS to justify its decision to enact repeated reimbursement cuts for home health.

In an interview on Wednesday, Bill Dombi told The Rowan Report, “This improves the chances of success for our lawsuit. CMS is going to have to support their regulatory interpretations going forward. Congress is going to have to offer more detail in its legislative language, leaving less to being open to interpretation.” Regarding the PDGM lawsuit, CMS argued that the law was clear and the agency’s interpretation was valid. The overturning of Chevron Deference allows the possibility of arguing that CMS’s interpretation of the law is flawed. 

80/20 Rule

Dombi also explained that the Ensuring Access to Medicaid Services rule, also known as the 80/20 rule, was “drawn out of a whole cloth.” Previously, there were limited avenues available to challenge this rule. The repeal of Chevron Deference significantly improves the ability to challenge the 80/20 rule. The argument now, Dombi told The Rowan Report, is “Does CMS even have the authority to do this?”

More to Come

The Rowan Report anticipates more news coming out of Washington D.C. and the NAHC office regarding the 2024 pay cuts and the 80/20 rule. We will provide ongoing updates and information as it becomes available.

# # #

Kristin Rowan, Editor
Kristin Rowan, Editor

Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently taken on the role of Editor of The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com