September 2011

Medicaid Home Health Services Should Not Be Limited to "Homebound" Persons   Comments on Proposed Regulations Due to CMS by   MONDAY SEPTEMBER 12!   Over the years, state Medicaid programs have too frequently imposed improper limitations on home health benefits.  CMS has proposed helpful regulations to protect Medicaid home health beneficiaries, and comments on those regulations must be submitted by Monday September 12.  Comment letters can be submitted by uploading them through www.regulations.gov.   NSCLC will be submitting extensive comments, and also has prepared a condensed comment letter that can be customized by individual organizations for submission to CMS.  Click here to read the letters.     Each letter emphasizes the following points: Home health services should not be limited to "homebound" persons, or to persons requiring skilled nursing care. Home health services should as necessary be available in non-institutional settings outside of the beneficiary's home. Home health equipment should not be rigidly limited to a state-developed list. Home health "equipment and appliances" should be defined flexibly to address the needs of individual beneficiaries. A face-to-face meeting with a physician should be required, with appropriate timelines. The proposed regulations, when finalized, will be vital in protecting home health services for Medicaid beneficiaries.  Supportive letters to CMS are important so that the content of the final regulations will protect beneficiaries' interests, and CMS will more likely fast-track the finalization.     Questions or comments should be directed to Gene Coffey at gcoffey@nsclc.org, (202) 289-6976, ext. 206, or Eric Carlson at ecarlson@nsclc.org, (213) 674-2813.   Please send copies of your letters to Nancy Arevalo at narevalo@nsclc.org.

September ___, 2011

Dr. Donald Berwick
Administrator
Centers for Medicare and Medicaid Services
Department of Health and Human Services
Attention: CMS-2348-P
Mail Stop C4-26-05
7500 Security Boulevard
Baltimore, Maryland 21244-1850

          Re: Medicaid Home Health Services
                File Code CMS-2348-P

Dear Dr. Berwick:

[Organization name] submits these comments with respect to the above-referenced Notice of Proposed Rulemaking, 76 Fed. Reg. 41,032 (July 12, 2011).  [information about organization]

We salute CMS's initiative in developing these regulations and (as shown by our comments below) believe that in general these new regulations will improve the lives of the Medicaid recipients who need home health services.  In addition to our comments below, we support the separately-submitted comments of the National Senior Citizens Law Center.

I.          Requirement of a Face-to-Face Encounter Between Beneficiary and Physician

The proposed face-to-face requirement is mandated by the Affordable Care Act, which also mandated the same requirements for Medicare’s home health benefit.  For Medicare’s face-to-face requirement, the agency permitted a transitional period for implementation due to logistical challenges.  We recommend that the same level of caution be applied here.  We also recommend, when the home health care is complicated (for example, certain medical equipment), that CMS permit a greater period of time between the face-to-face visit and receipt of services.

II.        Invalidity of “Homebound” Requirement

We support wholeheartedly the Secretary’s proposal to specify in regulations that Medicaid home health services must not be limited to recipients who are “homebound.”  We note, however, that the Secretary’s proposed regulatory language does not clearly incorporate this prohibition.  We recommend that the regulation specifically indicate that a homebound requirement is not permitted.  We also recommend that the agency specify that Medicaid home health services cannot be contingent upon a recipient needing skilled nursing care or therapy.  The agency has indicated on a number of occasions that Medicare home health requirements (and not just the homebound requirement) may not be imposed in Medicaid’s home health benefit.  The home health regulations should clarify this. 

III.       Home Health Services Not Being Limited to Services Provided in the Home

We strongly support the Secretary’s conclusion that Medicaid home health services should not be limited to services furnished in the home.  As the Secretary notes, this conclusion is consistent with the ruling of the Second Circuit Court of Appeals in Skubel v. Fuoroli, 113 F. 3d 330 (2^nd Cir. 1997).  The court noted in Skubel that there is a “consensus among health care professionals that community access is not only possible but desirable for disabled individuals,” and persons with disabilities often need the provision of home health services in order to leave the home and participate in community activities.

IV.       Definition of Medical Supplies, Equipment and Appliances

The Secretary has proposed “criteria defining home health supplies, equipment, and appliances, to better align with the Medicare program’s definition of durable medical equipment.”  We caution the Secretary in applying Medicare’s medical equipment definition to Medicaid because of the different standards that apply to the coverage of their respective home health benefits.  Medicaid’s definition of “equipment and appliances” should be flexible so that beneficiaries’ needs can be met.

V.        State Lists of Preapproved Items of Medicaid Equipment

We recommend that the Secretary add to Medicaid regulations the policy dictated by the Health Care Finance Administration’s letter to State Medicaid Directors on September 4, 1998, which was written in response to the decision in DeSario v. Thomas, 139 F.3d 80 (1998) (the “DeSario letter”).  The DeSario letter established minimum principles that attach to a state’s use of a pre-approved list of medical equipment, but some states are failing to comply with these principles.  It is therefore necessary that the Secretary incorporate the letter’s policy into regulation, so that beneficiaries are not mechanically limited to listed equipment.

Thank you for your attention to these issues, and for your initiative in developing these important regulations. 

Sincerely,