NAHC to Feds: See You in Court

Posted July 12, 2023

McKnight’s Home Care

By: Liza Berger

It took a year, but the National Association for Home Care & Hospice (NAHC) finally took the measure of last resort: It filed a lawsuit against the Centers for Medicare & Medicaid Services over what it believes are “illegal” and “invalid” Medicare payment cuts.

“We had to wait until 2023 to file the lawsuit,” William Dombi, president of NAHC, told McKnight’s Home Care Daily Pulse in an interview Thursday, the same day the association unveiled the suit. “While the policies have been finalized, in order to get into court, you have to present a claim where those policies are applied. It first took place earlier this year. Then we gave CMS more time to see if they would do the right thing. When the proposed rule came out, that was the last straw.”

Dombi was referring to the 2023 enactment of half of the permanent behavioral adjustment — -3.925% ($635 million) related to the switch to the Patient-Driven Groupings Model (PDGM) system in 2020.

The proposed rule, introduced last Friday, proposed a 2024 rate reduction of 5.653%, which represents the remainder of the original 7.85% rate reduction for 2020 and 2021, along with an additional 1.636% for 2022.

Providers have had enough.

“It’s always a last resort to go to the courts, particularly against a government agency like Medicare,” Dombi said. “While we continue to work the regulatory and the congressional forums available to us, we felt this was necessary to provide an effort at protection, because we see the home health benefit dwindling because of these rate cuts, these illegal and invalid rate cuts.”

The suit, which challenges the 2023 final rule, cites two examples of harm from the 2023 permanent behavioral cuts. One, Mary Lanning Healthcare, in Hastings, NE, has experienced “forced reductions in service area, elimination of on-call availability after 4:30 p.m. on weekends and holidays, staff reductions triggered by fear of closure of the agency, and the actual anticipated closure of the agency (which has operated for 51 years), if further Medicare rate cuts occur in 2024,” the suit said. There is no other provider of home healthcare services in much of its present and former service area.

Similarly, Androscoggin Home Healthcare + Hospice, a nonprofit provider in rural Maine since 1966, has reduced in-person patient visits; decreased its workforce; capped patient admissions; and eliminated wound management services, telehealth services and Medicaid long-term home health to chronic care patients.

The lawsuit argues that CMS is required to institute the payment model changes in a budget-neutral manner rather than to initiate rate cuts that have resulted in service limitations or reduced access to care. Since the new payment model began in 2020, more than 500,000 fewer Medicare patients have accessed home health services, according to NAHC.

Home healthcare providers now have used all of their available firepower against CMS — regulatory feedback to CMS, legislation and now a lawsuit. We’ll see if it’s powerful enough.

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