L68. ENSURE ACCESS TO QUALITY SERVICES IN MANAGED CARE PLANS
L69. ENACT HOME CARE SPECIFIC ANTI-FRAUD MEASURES
L70. ENCOURAGE APPROPRIATE COLLABORATIVE ROLE OF PHYSICIANS IN HOME CARE
L71. ENSURE ACCESS TO HOME CARE AND FULL FEDERAL FUNDING IN ANY PROPOSALS TO REQUIRE MEDICAL DOCTORS IN HOME HEALTH AGENCIES
L72. OPPOSE EFFORTS TO STRIP BANKRUPTCY PROTECTIONS FROM HEALTH PROVIDERS
L73. ESTABLISH SAFE HARBORS AND DE MINIMUS THRESHOLDS UNDER THE FALSE CLAIMS ACT
L74. OPPOSE IMPLEMENTATION OF FEES FOR MEDICARE OVERPAYMENTS AND AUDITS
L75. REQUIRE FEDERALLY FUNDED CRIMINAL BACKGROUND CHECKS AND ESTABLISH A NATIONAL REGISTRY SYSTEM
L76. PROHIBIT GAG RULES IN MANAGED CARE CONTRACTS
L77. REQUIRE CONTRACTORS OF CARE IN THE HOME TO ENSURE SUPERVISION AND SUPPORT OF PARAPROFESSIONALS
L78. ENHANCE CONSUMER PROTECTIONS FOR HOME CARE RECIPIENTS
L79. DEVELOP QUALITY OF CARE STANDARDS FOR CONSUMER-DIRECTED CARE
L80. PREVENT VIOLENCE AGAINST HOME CARE WORKERS
L81. COORDINATE HOME CARE AIDE AND NURSING HOME AIDE TRAINING REQUIREMENTS
L82. ESTABLISH FEDERAL MEDICAID STANDARDS FOR PERSONAL CARE SERVICES
L83. MODIFY PREEMPTION PROVISION OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
L84. ELIMINATE ELDER ABUSE
L85. AUTHORIZE THE IRS TO ISSUE RULINGS REGARDING INDEPENDENT CONTRACTOR STATUS
L86. ENCOURAGE STATES TO ADOPT A LICENSURE LAW AND REGULATIONS FOR HOME CARE AGENCIES
L87. RESTORE PERSONAL ASSISTANCE SERVICES AS A MANDATORY MEDICAID SERVICE
L88. PROVIDE SUFFICIENT HOME CARE PAYMENTS SO THAT AGENCIES CAN PROVIDE APPROPRIATE WAGES AND BENEFITS TO PARAPROFESSIONALS
[ TOP ]ISSUE: Managed care can be defined as a system that: integrates the financing and delivery of health care services; employs a variety of techniques to manage utilization and contain costs, including utilization review, case management, and the use of primary care physicians as coordinators and managers of care; and provides significant financial incentives for patients to use low cost providers and procedures. Health maintenance organizations (HMO) and preferred provider organizations (PPO) are the most prominent examples of managed care systems.
Managed care began in the 1930s as prepaid group practices and were promoted on the grounds that they were designed to improve quality and continuity of care and provide preventive health care services including the development of outcome data. However, the purpose of managed care has shifted dramatically since that time. Managed care is now seen mainly as a means of limiting the use of health services, reducing costs or both.
The increased emphasis on managed care as a means of cost containment has caused concerns about quality and access among consumers and providers, who fear that increased reliance on managed care will exacerbate the problems experienced to date.
Foremost among the problems experienced by home care recipients and providers are the following:
The patient's physician loses control of the patient's care;
Managed care plans create strong financial incentives to deny services, and some plans have illegally denied home care services to patients who need them;
Patients whose care needs can be both expensive and lengthy are especially vulnerable under managed care plans that seek primarily to control costs;
When plans fail to achieve sustained cost savings,and many payors have found that promised savings were experienced only as a one-time phenomenon,benefits are reduced or eliminated altogether;
Patients are sometimes illegally denied home care services and must sue insurers to get the care they need and deserve;
Managed care organizations have sometimes engaged in unfair competitive practices and heavy-handed bargaining in negotiating referrals to home care agencies;
Consumers resent their lost freedom of choice in what can seem like a third-party bureaucracy designed to deprive them of care;
Unwarranted interference with the caregiving process and excessive paperwork have been continuing problems;
The potential for fraud and abuse increases under managed care when plans pursue cost savings at the expense of quality and access; and
In the long run, managed care can reduce quality of care by curbing the development and use of new medical technology.
RECOMMENDATION: Managed care is not a panacea for controlling costs and ensuring access to appropriate services. If utilized, managed care plans should be designed carefully so that the pursuit of least costly care does not jeopardize quality of care or access to necessary services. Managed care plans should include mechanisms to preserve consumer choice, ensure easy access to needed services, require and enforce quality assurance standards for all providers, ensure payment rates that recognize the costs associated with high-quality care, allow individuals to challenge adverse decisions, promote fair marketing practices, and provide appropriate consumer education.
RATIONALE: The rapid growth in health costs and the nation's economic woes have led both public and private payors to turn increasingly to managed care in an effort to get more services for the money they spend. However, studies of managed care have failed to show that cost increase reductions, where they occur, are more than a one-time-only phenomenon; and even strong supporters of managed care are not sure that it will work to hold down costs. Further, a study conducted by the University of Colorado has found that Medicare home health patients in managed care plans received fewer services and had worse outcomes than other home health patients. Clearly, there is a strong need for safeguards to ensure that cost savings are not achieved by denying needed services. Without these safeguards, managed care will ultimately be rejected by both consumers and providers as an appropriate system of financing and delivery of health care services.
[ TOP ]ISSUE: With increasing pressures of competition and the growth in health care use and outlays, the health care industry is not immune to the involvement of participants who engage in improper and illegal schemes for the sake of profit. At the same time, health care providers that operate well within the law are unable to effectively compete in the market when faced with competitors who offer kickbacks for patient referrals, bill for services not provided, or charge costs which are not part of the delivery of services.
A number of home care antifraud measures were introduced in the 105th Congress, the most comprehensive of which was introduced by Senate Special Committee on Aging Chairman Charles Grassley (R-IA) and Ranking Minority Member John Breaux (D-LA). Their legislation, S. 2031, the "Home Health Preservation Act," was based on recommendations from the Committee's July 1997 hearing on home health fraud, and a roundtable discussion on home health care held in September 1997 which included representatives from the home care community.
S. 2031 would have revised the home health agency (HHA) Medicare Conditions of Participation (COP) to require that HHAs have: 1) sufficient knowledge of reimbursement requirements, coverage criteria and claims procedures, and the civil and criminal penalties for non-compliance; 2) employees with sufficient prior education or work experience in health care delivery; 3) a fraud and abuse compliance program; and 4) a practice of making an agency's most recent compliance survey available to beneficiaries.
The legislation would have also required an HHA to notify its fiscal intermediary (FI) and state licensing entity if it was: 1) providing a category of skilled service that it was not providing at the time of its most recent survey; 2) operating a new branch office that was not in operation at the time of its most recent survey; or 3) involved in a new joint venture with other health care providers or other business interests.
In addition, the bill required the Department of Health and Human Services (HHS) to provide for comprehensive training of state and federal surveyors. Lastly, the measure stripped home health providers of certain bankruptcy protections.
RECOMMENDATION: Congress should continue its work in combating waste, fraud and abuse in our nation's health care system by passing a home care-specific antifraud package that includes:
- The institution of corporate compliance plans by all home health agencies to ensure adherence to all federal and state laws.
- Mandatory screening and background checks on all individuals wishing to open a Medicare home health agency as well as all employees of home health agencies and establishment of a national registry of home care workers. Moreover, the government must provide adequate reimbursement to home health agencies for background checks.
- Strengthening of program participation standards to include experience credentialing and competency testing of home health agency personnel responsible for maintaining compliance with Medicare standards.
- The investment of sufficient government and industry resources to expedite and ensure appropriate implementation of a workable prospective payment system that eliminates existing incentives for inefficiency and overutilization of services.
- Providing consumers and prospective consumers of Medicare home health services with a summary of program coverage requirements. The consumer reporting hotline for suspected fraud, waste, and abuse also should be enhanced and made more accessible.
- Implementation and development of credentialing and competency testing standards for government contractors and federal regulators responsible for issuing Medicare determinations.
- Enhancement of education and training of home health agency staff through joint efforts with regulators.
- Implementation of outcome-based compliance standards that provide operational flexibility and also eliminate structural requirements that are unrelated to the provision of high quality Medicare home health services.
- Development and implementation of Medicare coverage and reimbursement standards in language that is understandable and accessible to providers and consumers through various means; for example, through Internet, federal depository libraries, and fiscal intermediaries.
RATIONALE: It is particularly important to ensure that limited health care dollars go to the provision of patient care rather than being diverted into the pockets of unscrupulous providers. A comprehensive fraud and abuse package that includes home health specific provisions and provides adequate enforcement tools to punish those who willfully and knowingly defraud the system is needed.
Moreover, any antifraud legislation must make a distinction between willful fraudulent activity and unintentional failure to comply with Medicare regulations. For example, the Office of the Inspector General often characterizes as fraud technical errors on claims or billing for services that do not appear to meet Medicare reimbursement requirements related to medical necessity. Yet, determinations of whether care is medically necessary are, by their nature, subjective and not an exact science.
[ TOP ]ISSUE: Medicare home health benefits require a physician's authorization for a plan of care before a beneficiary can receive home health services. Many physicians are very knowledgeable of a patient's condition and are able to certify the need for home care based on that knowledge. Other physicians perform a physical examination of a patient in order to establish an appropriate course of treatment. The Department of Health and Human Services (HHS) Office of the Inspector General (OIG), concerned that physicians might certify ineligible patients for home health, has advocated a mandatory physician office visit, combined with follow-ups every 60 days. Due to the medical conditions of many homebound patients, a mandatory office visit may be impossible to comply with, could preclude access to home care services, and could increase costs to the Medicaid program. Further, such a requirement could be unnecessary and costly where the physician is familiar with the case.
The Health Care Financing Administration (HCFA) and Congress must examine the role of physicians in home health and the ability of patients to access care. For example, a mandatory physician office visit prior to home health certification will create numerous difficulties for Medicare beneficiaries. Patients who are eligible for home health services are, by definition, homebound. Requiring these beneficiaries to travel to a physician's office would constitute a severe hardship to non-ambulatory patients and such travel may further complicate the patient's condition. Moreover, in some rural areas, a trip to the doctor's office could exceed one hundred miles and would require an ambulance or special vehicle for transportation, adding tremendous costs to the Medicare program. Alternatively, requiring all home health patients to submit to a physical (without specification of the site where the physical must be performed) could also create problems, as many eligible home health patients may be unable to find a physician who is willing to perform a physical in the patient's home.
RECOMMENDATION: Before making any legislative changes, Congress should require that HCFA study the role of the physician in home care and determine which factors enhance the physician's ability to conduct oversight activities, ensure appropriateness of care, and work collaboratively with home health agencies without compromising quality or access to home care and without wasting precious program funds.
RATIONALE: For over 30 years, home care providers have been the eyes and ears of physicians, conveying necessary clinical information on a continuous basis. Increased physician involvement will undoubtedly strengthen this communication and consequently improve patient care. Existing requirements already ensure physician participation through ongoing reporting responsibilities and monthly progress reports. In fact, the health care community supported HCFA's amending of the physician's fee schedule to include payment for care plan oversight services involving home health and hospice. Mandates such as office examination or physical examinations must be closely studied so that they do not unnecessarily burden homebound patients and increase Medicare expenditures.
[ TOP ]ISSUE: During the 105th Congress, the issue of mandatory medical direction of home health agencies was discussed as a potential means of ensuring quality of care, compliance with home health regulations, and accountability for patient care. Ideally, medical directors could help bridge communication gaps between a home care agency and a physician's office, and help implement the most appropriate clinical services while helping to clarify the status of homebound patients. Several concerns must be met, however, before this idea becomes a statutory requirement. First, Medicare home health agencies are already under extraordinary financial strain due to the interim payment system and a host of other burdens. The additional, and potentially substantial, costs of a medical director simply could not be borne under the current payment system and would need to be fully funded by the Medicare program as a pass-through. Second, many physicians have very limited understanding of home care and the medical regulations. Third, many rural and underserved areas may find it particularly difficult to recruit any medical director, much less medical directors, with adequate knowledge of the Medicare home health benefit. Severe access problems would result if home health agencies were not able to meet this requirement in these areas.
RECOMMENDATION: Before Congress considers mandating a medical director requirement, care access and funding concerns must be satisfactorily resolved.
RATIONALE: Ideally, increased physician involvement could enhance home care delivery. However, under IPS, home health agencies are already struggling to survive financially. HCFA estimates that, under current policies, nearly all agencies will receive less than their actual costs of providing care. Many costs, including most costs associated with OASIS, are not reimbursed. Even under the modest improvements offered by the 105th Congress, most agencies will still continue to sustain considerable losses. It would be impossible for all agencies to comply with a mandate to have a physician on staff unless full reimbursement is guaranteed and other concerns are fully met.
[ TOP ]ISSUE: Under the Bankruptcy Code, a health care provider can assert that any civil monetary penalty due to the Medicare program is discharged and does not survive the bankruptcy proceeding. Current law also provides for various causes of exclusion from the Medicare program. However, several bankruptcy courts have held that a provider may not be excluded from Medicare during the pendency of a bankruptcy proceeding because of the court's automatic stay.
The Senate-passed version of the Balanced Budget Act of 1997 contained a provision which would have barred bankruptcy courts from staying exclusions of health care providers from Medicare, and from the dischargability in a bankruptcy proceeding of fines and recovery of payments received through fraud. This provision was ultimately dropped from the final bill.
Lawmakers, however, are continuing to try and strip bankruptcy protections from health care providers. Rep. Fortney H. (Pete) Stark (D-CA) has introduced legislation that would stop providers from being able to have their debts to Medicare excused if they declare bankruptcy. H.R. 2466, "The Medicare and Medicaid Recovery Act" would prohibit automatic stays of action and the discharge of all pre-bankruptcy obligations that apply during a bankruptcy proceeding so that providers could not escape Medicare exclusion or civil monetary penalties by declaring bankruptcy. In addition, the Administration's fiscal year 1999 budget request contained a proposal that would prohibit discharge of Medicare debt and would make Medicare a priority over other debtors when a health care provider declares bankruptcy. Neither proposal was enacted by the 105th Congress.
RECOMMENDATION: Congress should reject any proposal to exempt health care providers from Bankruptcy Code protections.
RATIONALE: All health care providers, including home care and hospice providers, should be treated equally and should be able to access bankruptcy protection when needed. Bankruptcy protection allows health care providers to reorganize and get their affairs in order so they can emerge from bankruptcy in a stronger fiscal condition and continue to provide quality care. Bankruptcy protection is especially important in home health care where providers have little in the way of tangible assets and depend upon a stable and regular cash flow from health insurers and the Health Care Financing Administration (HCFA). Disruptions in revenue streams, even for a short while, can cause irreparable damage to the viability of a home health agency.
[ TOP ]ISSUE: Currently, federal prosecutors can use the False Claims Act (FCA) to accuse health care providers of fraud and threaten the imposition of treble damages and fines of $5,000 to $10,000 per claim even if the error was an inadvertent billing mistake. In these instances, most providers are often compelled to settle these claims instead of facing the prospect of an automatic fine or costly legal bills. In response to complaints from health care providers, Rep. William Delahunt (D-MA) and Rep. Bill McCollum (R-FL) introduced H.R. 3523, the "Health Care Claims Guidance Act," in the 105th Congress which would distinguish claims of fraud from the honest mistakes of innocent providers by establishing de minimus thresholds and safe harbors for an action to be brought under the FCA. In addition, the legislation included incentives for health care providers to maintain compliance plans by establishing a safe harbor for providers that follow model compliance plans.
In response to Congressional inquiries and industry concern, the Department of Health and Human Services (HHS) Office of the Inspector General (OIG) and the Department of Justice (DoJ) have issued guidelines to be used in national enforcement projects. The guidelines establish "minimum monetary thresholds and/or percentage error rates" for each national enforcement project. Calculations of the minimum thresholds will be based on applicable statutes, regulations, and program guidelines, as well as applicable provider data. These thresholds will then be used for "determining which health care providers the OIG will initially refer to the appropriate contractor for overpayment recoupment and which will be developed for potential referral to the DoJ or other appropriate enforcement agency."
These guidelines fail to adequately protect providers who are being pursued by overzealous enforcement agents under the FCA.
RECOMMENDATION: Congress should enact legislation that establishes de minimus thresholds and safe harbors for an action to be brought under the federal False Claims Act.
RATIONALE: Greater balance must be ensured in OIG and DoJ protocols between the rights of health care providers and the need for enforcement of the False Claims Act.
[ TOP ]ISSUE: In the 105th Congress, Rep. Fortney H. (Pete) Stark (D-CA) introduced a comprehensive fraud and abuse package, HR 2632, the "Medicare and Medicaid Beneficiary Protection Act," which called for new fees for Medicare overpayment collection and would require providers to pay for Medicare audits.
The legislation would establish administrative fees for Medicare overpayments. Under the bill, a fee of five percent of the Medicare overpayment would be imposed on providers who fail to pay or offset the overpayment within 30 days. Fees from Part A services would be deposited into the Hospital Insurance Trust Fund, fees from Part B services would go to the Federal Supplementary Medical Insurance Trust Fund.
Another provision of the legislation would require all hospitals, skilled nursing facilities, home health agencies, hospices, clinical laboratories, and ambulance companies to fund annual, federal financial and compliance audits as a Condition of Participation (CoP) in the Medicare and Medicaid programs. Other businesses owned by the agencies, in whole or in part, would be included in the audits, which are intended to ensure that providers are furnishing services that are covered and medically necessary, that they are delivering billed services, and that their cost reports are correct.
Under the legislation, audits would be paid for through hourly fees charged to providers. Thus, audit costs would depend on both provider size and degree of compliance. There would be an exception for agencies which, in the determination of the Secretary of Health and Human Services (HHS), receive only a small amount of revenues from Medicare and Medicaid. No action was taken in the 105th Congress on the Stark bill.
RECOMMENDATION: Congress should oppose any efforts to charge administrative fees for Medicare overpayments and annual audits.
RATIONALE: An administrative fee for Medicare overpayments unfairly penalizes providers for shortcomings in the Health Care Financing Administration's (HCFA's) claims processing. Errors in claims processing have been on the rise over the past few years and have resulted in millions of dollars in overpayments to home health providers through no fault of the agencies. Most recently, under the interim payment system (IPS), many home health agencies have operated for months without knowledge of their new payment rates. The magnitude of these cuts combined with the lack of timely information, have put many home health agencies in an overpayment situation. Charging a fee for overpayments would be like asking providers to pay for HCFA's mistakes and those of HCFA's agents. Moreover, under current law, providers must already pay interest payments at Treasury rates for Medicare overpayments. A preferable approach to stop Medicare overpayments would be to provide better guidance to health care providers and HCFA auditors to ensure that claims are paid correctly the first time.
Moreover, while the home care and hospice industries support the increased training of federal auditors and minimizing the administrative burdens on providers through consolidation of the survey and certification process, home care and hospice providers do not support increasing administrative costs by requiring providers to fund federal audits. Audit and compliance functions are the duties of HCFA. Requiring providers to be responsible for costs over and above the limited amount which Medicare and Medicaid provide as reimbursement is unfair.
[ TOP ]ISSUE: A recent spate of media attention has focused on the unacceptable, but few, cases of abuse of home care clients fueling consumer anxiety and industry concern about the need for better consumer protections. Although any fraud and abuse is unacceptable, it's important to note that cases of consumer abuse in home care are rare, certainly the exception rather than the rule. The overwhelming majority of home care workers perform their duties with compassion and integrity; likewise, the vast majority of home care agencies provide reputable, legitimate, quality care. However, as in any growing industry, there are a few unscrupulous individuals who defraud and abuse the system and its patients.
In March 1997, the Health Care Financing Administration published proposed rules governing the Conditions of Participation in the Medicare program which included a provision to require home health agencies to conduct a criminal background check of home health aides as a condition of employment. Both the House and Senate have discussed proposals to implement a national criminal background check policy.
Criminal background checks cannot be relied on as the sole method of keeping consumers safe. No matter how effective, the criminal background check should not substitute for the most basic and prudent personnel practices that any responsible employer would undertake to establish the appropriateness, safety and suitability of an applicant.
RECOMMENDATION: Federal requirements for worker screening should be strengthened to include federally funded criminal background checks for all home visiting staff. An organized system for criminal background checks should be developed which is reasonable in cost and will provide up to date information in a timely manner. Laws should ensure that the rights of patients, providers, employees and job applicants are protected.
Congress should require development of a national registry listing home care workers who have been deemed qualified to provide home care services or those who have been found in violation of the law or safety standards; states should be required to participate in this registry.
RATIONALE: As the demand for high quality home care increases, it is critical that all services are delivered with care and compassion by ethical providers. Fraud and abuse cannot be tolerated in any form. The care environment must be safe for patients and caregivers and free of abuse, exploitation and inappropriate care. Criminal background checks and a national registry are important components of ensuring consumer safety.
In state laws the trend is toward background check requirements for nursing and home care aides only; however, there is currently no consistent systematic mechanism through which other home visiting staff are checked. It is in the best interest of consumers of home care services for all home visiting staff to be screened.
Under a provision in the fiscal year 1999 Omnibus Appropriations legislation, a home care agency or a nursing facility is permitted but not required to submit a request to the Attorney General (through the appropriate state agency) to conduct a criminal background check on applicants who are involved in direct patient care. This provision, which does not mandate criminal background checks, is an important step toward making criminal history information more accessible. It is very likely that Congress will continue to consider mandatory criminal background check provisions as the capacity of federal systems to process such requests is improved.
[ TOP ]ISSUE: There have been problems with some managed care plans that restrict access to home care in violation of the terms of the private insurance policy or, in the case of federally-qualified health maintenance organizations (HMOs) and Medicare HMOs, federal regulations. In some cases, contracts with managed care plans contain "gag" rules that prohibit providers from communicating with patients about the full range of appropriate treatment options for a patient's condition or about disagreements providers may have with health plan decisions. Providers are often reluctant to pursue corrective action either by reporting the matter to appropriate government authorities or discussing the matter with the patient for fear of retribution by the health plans which may terminate or not renew their contracts.
RECOMMENDATION: Congress should enact legislation which would forbid "gag" rules in managed care contracts and prohibit any adverse action by managed care plans against a provider for medical communications between provider and patient, or between provider and state or federal regulators with the responsibility of licensing and oversight of the managed care plan.
RATIONALE: Where inadequate services are provided by managed care plans, patients may suffer adverse health outcomes or face unnecessary costly institutionalization, which often must be financed by state Medicaid programs. Forbidding "gag rules" and retaliatory actions by health plans would enable providers to fulfill their professional obligations to tell their patients what care they should be receiving and act as "whistleblowers" by reporting improper restrictions on home care utilization to appropriate government agencies.
[ TOP ]ISSUE: Some states contract directly with individuals to provide paraprofessional services such as attendant care, chore services and in-home support services instead of obtaining these services through an organized home care provider. The approach of using individuals as home care aides has created problems where there has been insufficient training or supervision of the caregivers. The result can be poor quality of care and a system which leaves the client open to fraudulent billing and abuse by caregivers.
The Internal Revenue Service appropriately views these "individual providers" as employees of the state. Under present law, the states and counties are required to pay FICA, unemployment insurance and workers' compensation, as well as have the burden of withholding federal income tax on behalf of these individuals.
States have found other ways in which to use such unlicensed independent providers, however, such as providing patients with a list of individuals who are available for work, without any screening of those individuals.
In addition, some states and subcontractors for federal and state programs are currently hiring case managers who, while they are not providing direct patient care, are brokering the provision of home care and supportive services. Some case managers are hiring or contracting with individuals directly to provide services instead of using agencies meeting nationally recognized standards in the home care field, such as those established by Medicare certification, the National Association for Home Care (NAHC), the Community Health Accreditation Program or the Joint Commission on Accreditation of Healthcare Organizations. In many cases, the result has been a lack of training, poor, if any, supervision, and instances of poor care and abuse.
Omnibus Budget Reconciliation Act of 1990 (OBRA-90), P.L. 101-508, established an optional state program to provide home- and community-based long-term care services for the elderly. The legislation does require that persons providing the care be competent to do so. It is unclear, however, what specific standards must be met by individuals providing care. It is NAHC's position that all care should be supervised and meet nationally recognized standards.
RECOMMENDATION: Congress should require that states or subcontractors of home care services using federal funds ensure appropriate training, testing, and supervision of home care paraprofessionals and provide basic employee benefits and other support to workers.
RATIONALE: Basic standards of care, including training, testing, and supervision must be met to assure minimum levels of safety for the consumer and the caregiver. A clear line of accountability for the quality and consistency of care provided is essential. Caregivers should have FICA withheld and paid, worker's compensation paid, and appropriate state, local and federal taxes withheld and paid.
These concerns are particularly important in light of increased delegation of nursing tasks to paraprofessionals.
[ TOP ]ISSUE: The overwhelming majority of home care workers are honest and perform their duties with compassion and integrity. Likewise, the vast majority of home care agencies provide reputable, legitimate, quality care. Cases of consumer abuse in home care are rare. Home care providers are often in a position of identifying abuse committed by others. In fact, Congressional testimony by the General Accounting Office regarding elder abuse indicates "in-home services was considered the most effective factor for both prevention and treatment of elder abuse."
However, as in any growing industry, there are a few unscrupulous individuals who defraud and abuse the system and its patients. It is critical that all services are delivered with care and compassion by ethical providers. Fraud and abuse, in any form, cannot be tolerated.
The growth in home care has been accompanied by both a proliferation of agencies and an increase in the number of independent providers, workers who provide care independent of agencies. Rarely are these independent providers subject to any training, competency testing, or professional supervision. This trend is fueled by two factors: the desire among people with disabilities to exercise greater control over their own care and states seeking cost-savings measures. The influx of workers into home care who are subject to no standards or screening has necessarily heightened concerns about consumer safety.
Although federal regulations should never be so cumbersome as to pose a barrier to care, basic standards of care must be established to ensure minimum levels of quality and safety for the consumer, the caregiver and the community. A 1995 report by the National Long Term Care Resource Center states: "Federal and state governments have continuing responsibilities for establishing and enforcing the conditions under which programs can be innovative, responsive to consumer preferences, and encouraged to exceed minimum standards."
RECOMMENDATIONS:
- Federal requirements for worker screening should be strengthened to include federally-funded criminal background checks for all home visiting staff. An organized system for criminal background checks should be developed which is reasonable in cost and will provide up-to-date information in a timely manner.
- A national registry listing home care workers who have been deemed qualified to provide home care services or those who have been found in violation of the law or safety standards should be established.
- Quality assurance standards should be required in all federal and state funded long-term care programs. Such standards should include minimum standards of training, testing, supervision, and practice in the delivery of in-home services. Quality and safety standards should apply regardless of consumer, provider or payor.
- Training programs should be approved by the state or by state or federally-approved accrediting organizations.
- Congress should require states to establish mechanisms for resolving problems that arise between consumers and independent providers.
- Congress should increase funding for adult protection programs and mandate that state elder abuse reporting laws include immunity from prosecution for persons reporting incidence of abuse.
- Congress should retain the elder abuse ombudsman functions of the Older Americans Act in reauthorization.
Congress should establish a commission to investigate elder abuse and make recommendations for increasing penalties.
RATIONALE: The care environment must be safe for both patients and caregivers and free of abuse, fear of abuse, neglect, exploitation and inappropriate care. Quality assurance standards are vital for home care. Consistent federal standards for home care aide training, competency testing, and supervision are critical components of quality care. Aides who work in nursing homes and in home care should be required to meet the same level of training and testing. The job responsibilities, not the care setting, should determine the requirements a caregiver must meet. All patients deserve the same high standard of care.
[ TOP ]ISSUE: Some states contract directly with individuals to provide paraprofessional services ranging from social support to "hands-on" personal care rather than using home care organizations for the provision of such services. In some cases the services provided by these individual providers require highly-trained health care workers, such as in cases where insulin injections, catheter care, nasogastric tube insertion and feeding, and other services are needed. These services are financed through a variety of programs at the federal, state and county levels. Many states have determined these workers to be employees of the client, thereby delegating the traditional duties of the employer (such as hiring, training, supervising, firing, securing backup workers when the primary care provider is not available, performing background checks, and, in some cases, transmitting payment for services and making employer tax contributions) to the client.
Advocates for people with disabilities are strongly supportive of consumer direction of personal care and have worked diligently to make the option more widely available. Clearly, it provides recipients more choice and greater independence. However, states' decisions to use this model are too often driven by cost savings considerations rather than patient needs.
NAHC recognizes and fully supports the rights of individuals to direct their own care. However, NAHC has serious concerns about state or federal imposition of the consumer-directed model of care upon individuals who are incapable of directing their own care, fearful of assuming the responsibilities of an employer, or unaware of the responsibilities associated with consumer-directed care. NAHC is also concerned that, in the absence of minimum quality standards, it is possible that neither clients nor workers may be protected by important Occupational Safety and Health Administration (OSHA) safeguards, such as the bloodborne pathogen standard, because the workers are not considered to be employees of organizations which are bound to follow OSHA rules.
RECOMMENDATION: Congress should require all states contracting with individuals to provide paraprofessional home care services through federally-funded programs to provide adequate assurances that consumers receiving care from such individuals are assessed to be capable (for example, a person receiving highly skilled services such as catheter care must be capable of directing the caregiver in the performance of that task) and willing to assume the required employer responsibilities. Consumers should also be given the option to choose among service models (consumer-directed, home care agency, etc.) to ensure individual freedom of choice. States should also provide a mechanism for resolving any problems which arise between a consumer and providers, and should devise a method for ensuring that backup workers are available. Consumers directing their own care and their caregivers should be afforded the same important protections that are required when care is provided through an agency. Caregivers should be trained, tested, and competent to provide services.
RATIONALE: A goal of home care is to foster independence in the least restrictive environment while safely meeting the consumer's needs. Consumers have the right to choose the model of care that best suits those needs. Individuals who are capable and choose to should be permitted to self-direct care. However, those who are unwilling or unable to assume the many responsibilities associated with this model should be able to select other options. For the safety of consumers and caregivers, the training, testing, and quality standards to which agencies are held should apply to all models of care. All models of care should require compliance with applicable state and federal labor laws and health and safety regulations.
[ TOP ]ISSUE: Home care workers are facing an increasing risk of violence directed at them by their patients, patients' families and friends and others in the neighborhood of the home. In 1996, that violence reached a dramatic point with the murders of two home care nurses by their patients.
While home care workers deliver health care services outside of controlled environments as a public service, only limited protections have been created to guard these workers. As more home care providers initiate risk management efforts to protect their workers, governmental resources should be made available to assist in this important effort.
RECOMMENDATION: As part of an overall federal effort to stem workplace violence affecting home care, Congress should enact legislation to:
- Make physical violence directed toward home care workers providing federally-funded care through programs such as Medicare, Medicaid, CHAMPUS, and veterans health programs, a federal-level felony with appropriate classification of the felony dependent upon the degree of violence.
- Establish a grant program to provide for the development of training programs for local and state police regarding the role that they can play in protecting home care workers.
- Ensure reimbursement for home care services to allow for pass-through financing for any reasonable and necessary security measures required to protect home care workers and to maintain continued access to services for home care beneficiaries.
- Direct the U.S. Department of Health and Human Services and the Civil Rights Division of the U.S. Department of Justice to establish a model standard for suspension of services in geographic areas which may be temporarily subject to increased risk of violence. This standard would allow for suspension of services without risk of allegations of noncompliance with various civil rights laws.
RATIONALE: With federal financing of a significant portion of the home care currently received by the nation's homebound and infirm, Congress plays an important role in protecting the delivery of high quality services to those in need. If home care workers are at risk of violence in the delivery of services, the health and safety of the patient is also at risk and quality of care suffers. Making violence directed at federally financed home care workers a federal felony may act as a deterrent to future violence. Furthermore, in many communities the local law enforcement have become important partners in the delivery of home care services. Their knowledge and experience should be harnessed to benefit the home care population nationwide. Federal grants can be the springboard to the development and dissemination of successful models of integrated involvement between home care and local law enforcement.
Since workplace violence presents a health and safety concern, OSHA is properly positioned to develop model standards for risk management. The benefit of OSHA-based standards is the likely consistency and uniformity in implementation. However, efforts directed toward increased protection of home care workers will increase the cost of the delivery of services. The various federal programs which finance home care services must adjust their rates of reimbursement to meet this cost for these efforts to be effective.
Finally, the occurrence of violence against home care workers may result in discriminatory treatment of geographic areas by home care providers attempting to avoid danger. It is not unusual for a home care provider to suspend services temporarily in geographic areas when violence arises. This suspension may affect a home, apartment building, housing complex, or an entire neighborhood. In order to avoid allegations of discrimination, Congress should require the appropriate federal authorities to establish standards to which home care providers can refer in making determinations on suspension of service as a last resort to protect home care workers.
[ TOP ]ISSUE: The Omnibus Budget Reconciliation Act of 1987 (OBRA-87, P.L. 100-203) requires Medicare-certified home health agencies to meet requirements related to the training and testing of home health aides. Similarly, OBRA-87 provides that Medicare-certified nursing facilities must also meet requirements relating to training and testing of nurses' aides within their facilities. While the differences in services provided by home care aides and nurses' aides require different training, there are areas which are comparable for both care providers. Neither OBRA-87 nor the regulations promulgated by the Health Care Financing Administration coordinate the two programs in a way that maximizes the availability of personnel to provide health care. The result is duplicative and costly certification programs for aides.
Additionally, the Medicare program requires supervision and competency testing of home health aides, but does not include the specific training requirement imposed on nurses aides in skilled nursing facilities.
RECOMMENDATION: Congress should pass legislation that requires the Secretary of Health and Human Services to coordinate the aide training and testing programs for home health agencies and nursing facilities, recognizing the differences in the services that are provided in the home and institutional settings. While additional training will be required for service provided in the home, there should be a core subject area that overlaps both aide trainings, but does not require additional unrelated hours of training for either category of aides.
RATIONALE: A report by the General Accounting Office projected that increased public financing of long-term care services could dramatically increase the demand for home care aides to 1.3 million workers by the year 2040. Additionally, a 1995 Department of Labor report revealed the home care aide profession as one of the fastest growing occupations, with a projected growth of nearly 120% between the years of 1994 and 2005.
These figures underscore the need to create additional incentives for individuals to enter the field. The coordination of the two training/testing programs will make the position of home care aides more attractive for individuals given the expanded areas of employment opportunities. Further, the coordination of the programs will allow providers of services greater access to properly trained paraprofessional care. Ultimately, coordination of the two programs will improve access to services and reduce the costs of meeting the training and testing requirements. In its 1998 report, the President's Advisory Commission on Consumer Protection and Quality in the Health Care Industry called for minimum standards for education, training and supervision of unlicensed paraprofessionals in home care, nursing home and hospital settings.
Finally, the training requirements that apply to nursing home aides should apply to home care aides. The tasks, not the care setting, should determine the requirements a caregiver must meet. All patients deserve the same high standard of care.
[ TOP ]ISSUE: In OBRA 1993, Congress established a Medicaid optional benefit of personal care services which modified existing regulatory standards for such care. Under OBRA 1993, care can be planned at a state's discretion by non-physicians and provided by any caregiver considered qualified by the state Medicaid program. There are no federal quality of care standards for the services. As a result, states have implemented personal care programs which require no training or testing of the competency of the caregiver and no quality of care oversight.
RECOMMENDATION: In any Medicaid reform efforts, Congress should require federal standards for quality of care for personal care services, including minimum standards of caregiver training, competency, nursing supervision, and overall caregiver qualifications with quality of care oversight.
RATIONALE: Personal care is an area of significant growth in home care. Within Medicaid, both the population served and the caregivers providing the service vary widely from state to state and location to location. Strict standards of quality are established for Medicaid and Medicare home health agencies, yet it is left to the states' discretion to establish any quality of care standards for Medicaid personal care services. With that discretion, states have allowed personal care workers without training or competency testing to provide invasive services such as catheter insertion and tracheal suctioning of ventilator-dependent patients. For the protection of consumers and caregivers, the same quality standards that apply to agencies should apply to personal care workers who are not employed by agencies.
[ TOP ]ISSUE: As a result of a series of rulings by the U.S. Supreme Court, employer-based health benefits plans subject to the Employee Retirement Income Security Act (ERISA) are protected from risk of financial penalty that might come from bad faith or arbitrary and capricious claims determinations. In addition, ERISA has been used to block medical malpractice claims against third-party payors who control the delivery of services to patients. Finally, courts have construed ERISA to preempt claims against insurance companies by health care providers who relied upon an insurance company's information that the patient served by the provider was dually enrolled and entitled to insurance payment. Courts have also held that ERISA preempts state "any willing provider" provisions. Moreover, under ERISA, claims for punitive damages, malpractice, and negligent misrepresentation are preempted since they are founded in state rather than federal law. ERISA, therefore, allows claims against insurance companies solely for payment of improperly withheld benefits.
RECOMMENDATION: Congress must amend ERISA to allow aggrieved employer-based health plan enrollees, participants, and providers of services to challenge arbitrary and capricious action, negligent determinations which affect the delivery of health care, and misrepresentations to providers of services related to the insured status of the individual.
RATIONALE: The essential purpose behind ERISA was to allow self-insured plans offered by multi-state employers to maintain a consistent plan for insuring the health care needs of their workers. With varying state law and regulation, collective bargaining and program management have become complex and costly. However, ERISA-based plans have utilized the federal preemption of state law claims to protect insurance companies from having to act fairly, consistently, and accountably. With the ERISA preemption, the plan has no incentive to issue correct determinations since its liability is limited to the cost of care that would have been covered had a proper determination been made. If only one plan participant who is wrongly denied benefit payments fails to challenge the denial, the plan incurs a financial gain.
[ TOP ]ISSUE: As the population continues to age, it becomes increasingly important to protect seniors from abuse, neglect and exploitation. Although statistics indicate that most elder abuse is actually done by family members, there are still too many reports of abuse carried out by unrelated caregivers.
Stimulated by Congressional attention, many states passed elder abuse protection statutes between 1978 and 1985. Congress, in 1988, passed legislation to assist the states in this effort. In fiscal year 1991, the Congress, for the first time, provided for separate, distinct funding for elder abuse and nursing home ombudsman activities under the Older Americans Act. This separate funding has been continued in subsequent years.
The Older Americans Act Amendments of 1992 (P.L. 102-375) established a new Elder Rights Services Title to consolidate and expand state responsibility for the development, coordination, and management of services directed toward ensuring that older individuals have access to, and assistance in, securing and maintaining benefits and rights. The title also significantly strengthened the long-term care ombudsman program and provided grants to states for supportive services to caregivers. Finally, the legislation established a National Center on Elder Abuse for the purposes of collecting and disseminating information regarding the incidence of and methods for identifying, treating, and preventing elder abuse, neglect, and exploitation. In another Congressional effort, the crime bill (P.L. 103-322) originally contained a provision which would have established a Senate Commission to investigate instances of elder abuse and to make recommendations for increasing penalties. This provision, however, was stripped from the bill during the House-Senate conference on the legislation.
Congressional testimony by the General Accounting Office in 1991 regarding the effectiveness of reporting laws in preventing and treating elder abuse indicated "...a high level of public and professional awareness was the most effective [weapon] for identifying elder abuse; in-home services was considered the most effective factor for both prevention and treatment of elder abuse." Home care agency personnel frequently are in the position of detecting and reporting elder abuse and can play an important role in formal proceedings on behalf of their clients.
RECOMMENDATION: A coordinated national effort is needed to confront the issue of elder abuse. The federal government should take the lead in assisting the states in this effort. Congress should continue and increase funding for adult protection programs, and should pass legislation supporting elder abuse reporting laws and providing protection from prosecution for persons reporting incidences of abuse.
RATIONALE: Elder abuse is a hidden problem. Out of fear or dependence, many victims never report the abuse. It is clear that adequate state and federal resources must be allocated to address this national disgrace.
[ TOP ]ISSUE: A significant segment of the home care industry has used independent contractors, such as physical therapists, in the provision of services. Internal Revenue Service (IRS) actions indicate that many of these independent contractors are considered employees subject to different tax status. When such a determination is made, the IRS imposes liabilities against home care providers including back tax assessments and penalties. However, the IRS has not issued formal industry-wide rulings that provide detailed guidance to home health agencies. At this point, IRS officials indicate they feel they have no authority to issue detailed rulings on a particular industry as guidance for prospective action. The IRS states that 1978 legislation has effectively prohibited use of the IRS ruling process as a mechanism to provide guidance. As such, each home care agency is forced to rely upon its own interpretation of the law and regulations. Alternatively, the taxpayer-provider can seek an IRS advisory letter on specific agency contractors, but this serves to identify the agency to the IRS as potentially out of compliance. Often the agency must rely on its own interpretation of the law to avoid disclosure. Congress has considered legislative proposals which would have authorized rule making by the IRS regarding independent contractors and modified the standards for "safe harbor" from IRS enforcement.
RECOMMENDATION: Congress should modify the Internal Revenue Code to provide authorization to the IRS to issue specific, industry-related rulings regarding independent contractors.
RATIONALE: Home care agencies have consistently expressed a desire to know their responsibilities in a clear and direct fashion so that they can meet those responsibilities. The IRS has failed to provide adequate guidance. The issuance of an industry-specific IRS ruling would lead to the development of consistent action among home care agencies and IRS district offices.
[ TOP ]ISSUE: As of February of 1995, 40 states required Medicare-certified agencies to obtain licensure; 37 states require non-Medicare-certified agencies to obtain licensure. For home care aides, 17 states require licensure. For hospice, 39 states require Medicare-certified hospices to obtain licensure; 7 states require non-Medicare-certified hospices to obtain licensure. There is no uniformity among these laws (and their implementing regulations) and no model licensure law and regulations to look to for guidance. Thus, in the states without a licensure law and in many states with a licensure law, there is inadequate state regulation to ensure that home care agencies are fiscally stable and staffed and organized so as to ensure quality care. Certificate of Need (CON) laws generally do not provide a regulatory solution to assure quality and fiscal stability in lieu of licensure.
In addition, only a few states have laws requiring certification of all persons providing home care aide or other personal care services. The lack of state minimum mandatory training and supervision requirements presents significant problems in assuring quality of care at home.
RECOMMENDATION: Congress should mandate development of a national model for certification and licensure of home care agencies and encourage states to adopt and implement the model laws. A NAHC task force developed a proposed model licensure law to assist states in adopting a licensure law or strengthening their current law.
RATIONALE: Such model laws are needed to ensure appropriate consumer protection and to ensure that quality home care is being delivered by home care agencies and individual home care providers.
[ TOP ]ISSUE: The Medicaid program permits states to provide personal assistance services as an optional service. These services assist elderly and disabled individuals to maintain independence and remain in their homes despite limitations in activities of daily living. As of October 1, 1994, 33 states included personal care services in their Medicaid programs.
The 1990 Omnibus Budget Reconciliation Act contained a provision which included personal care services as part of home health care services offered under the program effective October 1, 1994. This legislation essentially mandated that states offer personal assistance services under Medicaid beginning in fiscal year 1995. However, the Omnibus Budget Reconciliation Act of 1993 included a provision that eliminated personal care as a mandatory Medicaid service, retaining it as an optional service only.
RECOMMENDATION: Congress should mandate coverage of Medicaid personal assistance services. In addition, minimum national standards for providers of Medicaid personal assistance services and personal care workers should be imposed to ensure quality of care. Care should be provided by workers who are appropriately trained according to the client's level of acuity.
RATIONALE: Provision of personal assistance services to low-income elderly and disabled individuals through the Medicaid program would assure that these services are available in all states to some of America's most vulnerable citizens. Recipients of services, as well as the payors, should be assured that quality services are provided by qualified individuals. Use of home care workers who are trained to provide the appropriate level of care for clients will help to ensure that home care services are high in quality and cost-effective. Personal care workers can help safeguard patients against falls and help ensure that individuals can remain in their own homes for as long as possible, delaying or eliminating the need for additional hospitalizations or nursing home placement.
[ TOP ]ISSUE: In the 105th Congress, Senator Edward Kennedy (D-MA) and Representative David Bonior (D-MI) introduced the Fair Minimum Wage Act of 1998 (S. 1805 and H.R. 3510) legislation to raise the minimum wage (currently $5.15 per hour) by $.50 on January 1, 1999 and by $.50 on January 1, 2000, to bring the minimum wage to the level of $6.15 by the end of the century. The legislation was tabled in the Senate but Congressional activity is very likely for 1999. The last minimum wage increases were a 50-cent increase on October 1, 1996 and a 40-cent increase on September 1, 1997.
The annual salary at the current minimum wage is less than $10,800 based on 40 hours per week of work at 52 weeks per year - below the poverty line for a family of three. It is estimated that the value of the minimum wage has declined over the past three decades by 30%. For the minimum wage to have the purchasing power it had in 1968, it would have to be $7.38 an hour.
The severe limitations on reimbursement under the home health interim payment system make it extremely difficult for agencies to comply with any requirements to increase wages, much less provide wages and benefits that reflect the worth of the care provided by paraprofessionals. In fact, current economic restrictions have resulted in many agencies cutting staff or seeking ways to save on patient care costs by limiting workers' hours or reducing wages or benefits.
RECOMMENDATION: Congress should provide that federal programs (Medicare/Medicaid) that finance home care services adjust reimbursement to allow for appropriate wage and benefit levels.
RATIONALE: Studies of issues that affect home care aide services indicate that low wages affect an agency's ability to recruit and retain home care aides. Generally, aides in nursing homes and hospitals receive higher wages than home care aides.
Because of low wages and benefits, home care aides are often cited in Congressional testimony as an example of a work force which would benefit from an increase in the minimum wage. And, increasingly efforts are being made to document the relationship between wages and quality of care. In 1996, the Older Women's League's report, "Faces of Care: An Analysis of Paid Caregivers and Their Impact on Quality Long Term Care," linked paraprofessional wage and benefit issues directly to quality of care issues
Without sufficient reimbursement, financially strapped home care agencies are finding it extremely difficult to provide quality care and pay increased wages.