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Plus: Aide services concern undercut by reimbursement reduction.

As home health providers plow their way through this year鈥檚 lengthy annual payment rule, industry representatives are taking action.

Reminder: In the rule published in the July 10 Federal Register, the Centers for Medicare & Medicaid Services proposes 鈥渁n estimated 5.1 percent decrease, as required by statute, that reflects the effects of the proposed prospective, permanent behavior assumption adjustment,鈥� which translates to an $870 million reduction in Medicare payments. That will result in a 2.2 percent Medicare rate cut overall (see more details in HHHW by AAPC, Vol. XXXII, No. 24-25).

The National Association for Home Care & Hospice 鈥渉as sued Medicare to preserve the home health service benefit for the millions of Americans who depend on it now and those who will in the future,鈥� says NAHC鈥檚 Tom Threlkeld. NAHC has filed a lawsuit against CMS and the U.S. Department of Health and Human Services 鈥渃hallenging the validity of a change in Medicare home health payment that reduced rates by 3.925 percent in 2023 with significant additional cuts expected over the next several years,鈥� the association says in a release.

The suit argues CMS hasn鈥檛 implemented the Patient- Driven Groupings Model in a budget-neutral manner as required. 鈥淲e have done everything possible to get Medicare to understand the disastrous consequences of its actions,鈥� NAHC鈥檚 William Dombi says in the release. 鈥淎s a last resort, we have filed this lawsuit to protect Medicare beneficiaries and the home health agencies that care for them.鈥�

In its July 12 Home Health Open Door Forum, CMS鈥� Danny Tsoi maintained that CMS analysis shows that Medicare paid more for home health services under PDGM than it would have under the old prospective payment system, and the cut in this year鈥檚 proposed rule addresses the difference in aggregate expenditures.

鈥淗ome Health agencies again must withstand billions of dollars in payment cuts as cost of care continues to rise and still be expected to deliver the care to which our patients are entitled to as a Medicare benefit,鈥� Ken Albert, Chairman of NAHC and CEO of Androscoggin Home HealthCare + Hospice, adds in the release. 鈥淪ince these cuts took effect in January, providers have reduced service areas, turned away thousands of patients, and halted the use of innovative technologies in order to stay afloat and serve some patients,鈥� Albert notes.

The suit 鈥渁lleges that CMS and HHS promulgated an illogical and invalid methodology in determining whether expenditures stemming from payment rates established in 2020 were 鈥榖udget neutral鈥� in comparison to the estimated expenditures that would otherwise have occurred under the previous payment model,鈥� NAHC says. 鈥淒ata from the Congressional Budget Office (CBO) highlights the extent of Medicare鈥檚 error. Following the 2018 enactment of the payment reform legislation, CBO projected 2023 Medicare expenditures at $23 Billion. In May 2023, CBO revised its 2023 projections downward to only $16 Billion.鈥�

The suit 鈥渟eeks declaratory and injunctive relief including a reversal of the rate adjustments in the 2023 rule and requirement that Medicare implement the budget neutrality mandate consistent with the law,鈥� NAHC says in its member newsletter.

鈥淗ealthcare providers are already pushing back on the proposed payment decrease, with one lawsuit filed鈥� so far, note attorneys Jason Brace, Christine Burke Worthen, Wes Scott, and Lily Shannon with law firm Nelson Mullins in online analysis. And rule comments blasting the cut are expected to pour in.

CMS touched on other controversial areas of the proposed rule in the forum.

For example: CMS staffer Chantelle Caldwell reviewed the market basket provision, which bases the inflation factor on 2021 data. Industry reps including Leading Age have voiced their discontent with the method that misses the last two years of extraordinary inflation.

Feds Signal Aide Scrutiny May Be Coming

And CMS official Kendra Delaine went over the request for information regarding home health aide services.

鈥淎necdotally, CMS has heard that beneficiaries have had difficulty receiving ... aide visits under the Medicare home health benefit. Additionally, our monitoring has shown that home health aide visits have decreased,鈥� the agency says in the rule.

鈥淐MS wants to ensure that all Medicare beneficiaries receiving care under the home health benefit are afforded all covered services for which they qualify,鈥� it says. 鈥淚n an effort to better understand any challenges facing Medicare beneficiaries in accessing home health aide services,鈥� CMS solicits public comment on a number of topics including:

• declining aide utilization;
• recruitment and retention challenges;
• reasons HHAs pay aides less than other settings; and
• the impact of declining aide services.

This may be a good chance for agencies to share their frustrations on the topic with CMS. The agency has heard 鈥渁 handful鈥� of anecdotal reports, plus HHS Office of Inspector General input, Home Health & Hospice Division Director Brian Slater said in the forum. CMS 鈥渦nderstand[s] the limitations and staffing issues鈥� and is looking for a 鈥渟tory behind that that we are maybe not privy to,鈥� Slater told an attendee in the question-and-answer portion of the call.

One of the main causes seems crystal clear to many HHAs 鈥� sustained underfunding of the benefit.

CMS鈥� proposal to slash rates in 2024 seems contra颅dictory to its concern regarding adequate aide services, one home health executive told Medicare officials in the forum. CMS seems not to have considered the obstacles such as the staffing crunch and reimbursement limitations in its rate-setting, she critiqued.

Reminder: HHAs can give CMS their two cents on aide staffing problems, the proposed cut, and the many other topics included in the rule by Aug. 29, multiple staffers pointed out in the forum.

Note: The rule is online at . The lawsuit complaint is at .