gavel on desk

The National Association for Home Care & Hospice is applauding a class action lawsuit against Health and Human Services Secretary Xavier Becerra over Medicare coverage of home health benefits.

Still, NAHC President William Dombi told McKnight’s Home Care Daily Pulse it could be a tough case to win.

“It’s not an easy case because you have to prove systemically that Medicare is not doing its job and administering the program as compared to individualized weaknesses and errors,” Dombi said. “That is going to be the biggest challenge here … but it also is something that may set up discussions with CMS in improving their performance.”

The class lawsuit was filed last Thursday in the U.S. District Court in the District of Columbia.

The plaintiffs in the suit include three people from Michigan, Missouri and New Jersey; the National Multiple Sclerosis Society; and Team Gleason, a New Orleans-based nonprofit representing  people suffering from amyotrophic lateral sclerosis. They claim Becerra is violating their rights under the Medicare Act and Section 504 of the Rehabilitation Act of 1973 by impeding and restricting the availability, accessibility and coverage of home health services. The bone of contention involves whether Medicare is required by Congress to cover up to 28 hours a week, and in some cases up to 35 hours a week, in home health services.

The lawsuit states Becerra “has effectively redefined eligibility for Medicare-covered home health aide services to exclude people who require more than very minimal aide services for a short duration of time.” 

Dombi said home health companies often refuse clients, saying the amount of care isn’t medically necessary or they can’t provide it. Reasons for this could be confusion around the benefit or it could be a problem with payment policy.

“I think that is one of the central problems,” Dombi explained. “Payment policy doesn’t respect the costs of services 28 to 35 (hours a week) …. So, home health aides are often put into a position that [they] are going to get $2,000 for all of your care and it’s going to cost $5,000 to provide it.”

The lawsuit comes as the home health industry is awaiting word from the Centers for Medicare & Medicaid Services about a proposed 4.2% Medicare payment cut ($810 million) in 2023 to home health agencies. A decision on the rule is expected by the end of the month.