A lawsuit filed against Health and Human Services (HHS) Secretary Xavier Becerra alleges the policies maintained by his department are restricting access to home health aide services for Medicare beneficiaries who are disabled or live with chronic conditions.
The suit was filed by a group of Medicare beneficiaries across multiple states as well as some health care advocacy groups earlier this month.
The plaintiffs alleged that Becerra has “adopted policies and practices that impede and restrict the availability and accessibility of Medicare-covered home health aide services for eligible beneficiaries with chronic, disabling conditions.”
Under Medicare coverage, beneficiaries are eligible to receive up to 28 hours of home health services a week or even 35 hours a week in certain circumstances. While the eligibility to receive these services has remained unchanged, the lawsuit alleges that the actual services that are made available to beneficiaries have continued to drop over the years.
One of the plaintiffs, Catherine Johnson of Missouri, suffers from multiple sclerosis and complete quadriplegia. In January 2021, a Medicare-certified home health agency terminated the services it was providing to Johnson.
Although this decision was later deemed “improper,” Johnson has since experienced “erratic” and “unpredictable” care, at one point being admitted to a hospital where her condition is alleged to have deteriorated further.
Johnson has recently been paying out of pocket for care from a “Medicare-certified agency” event though she argues these services are eligible to be covered by Medicare.
“The Secretary 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,” read the suit. “He thereby deprives these beneficiaries of necessary, Medicare-covered services for which they qualify and subjects them to discrimination on the basis of disability.”
As stated in the lawsuit, home health care agencies must meet conditions of participation in order to provide services to Medicare beneficiaries. However, the suit argues that Becerra’s “failure to oversee and enforce the Conditions of Participation” and other requirements have resulted in beneficiaries being unable to find home health agencies that are able to provide Medicare services.
These home health agencies are also disincentivize from accepting patients with disabilities or chronic conditions due to Medicare audits that could result in the return of “overpayments,” according to the lawsuit. At the same time, these agencies are allegedly not penalized for failing to provide necessary home health services.
The plaintiffs are seeking class-action status for their suit. They are also asking that the policies in effect under Becerra be declared in violation of Medicare’s statutes and regulations.
A spokesperson for the Centers for Medicare & Medicaid Services declined to comment when reached by The Hill, saying the agency “does not comment on pending litigation.”
The National Association for Home Care & Hospice voiced its support for the lawsuit, with the organization’s president, William Dombi, arguing that “decades of misguided policy changes” have eroded the benefits made available to Medicare beneficiaries.
“While the home health benefit includes 28-35 hours a week of medically necessary home health aide services, policy changes, arbitrary audit practices by Medicare contractors, and an endless series of payment rate cuts have made those rights a mere fiction,” Dombi said.
— Updated at 2:56 p.m.