WASHINGTON, May 6 /PRNewswire/ -- Three Medicare home health beneficiaries
with severe disabilities, along with the National Spinal Cord Injury
Association (NSCIA), today filed a national class action lawsuit against the
Health Care Financing Administration (HCFA), challenging an arbitrary
interpretation of Medicare's "confined to home" requirement that has denied
them, and hundreds of other qualified patients, coverage of critically needed
home care services.
To qualify for Medicare home health services under current law, a person must
be "confined to his or her home"; have a physician's plan of care and written
certification that he or she is homebound; and require part-time or
intermittent skilled nursing services, physical therapy, and/or speech-
language pathology services. A beneficiary is considered homebound if his or
her condition is due to an illness or injury that restricts his or her ability
to leave the home, except with the use of support and aid devices (such as
crutches, canes, walkers, wheelchairs, and other special equipment) as well as
assistance from other persons, or if leaving the home is medically
contraindicated. In addition, for a beneficiary to leave the home, it must
require a considerable and taxing effort, and these absences must be
infrequent, for periods of relatively short duration, or attributable to the
need to receive medical treatment.
In five separate counts, the plaintiffs argue that HCFA has implemented and
enforced an unwritten final policy position, which disqualifies all severely
disabled Medicare beneficiaries from receiving home health services coverage
if they avail themselves of personal care assistance, modern medical equipment
technologies, and a drive for improved mental and physical well- being, that
empower them to leave their homes with considerable and taxing effort.
However, the plaintiffs point out that if they choose to remain in their homes
or beds instead, they will meet HCFA's "confined to home" standard.
Plaintiff Vicki O'Neal, is a single 32-year-old woman from North Carolina, who
has a permanent spinal cord injury from a 1993 motor vehicle accident.
Paralyzed from her lower neck to her toes, the former school teacher requires
extensive skilled nursing and aide services at home in order to manage
multiple medical conditions and to conduct the essential activities of daily
living.
With these services, which are roughly one-half of the cost of comparable
nursing home care, and the assistance of a motorized wheelchair and
specialized public transportation, O'Neal is able to leave her home for brief
periods each day to promote her health and well-being through outdoor and
community-related activities. Without this care, assistance, and exhaustive
physical and emotional effort, O'Neal is essentially bed-bound. She cannot
practically receive any of her services outside of her home.
In 1996, the regional Medicare fiscal intermediary, Palmetto Government
Benefits Administration (PGBA), denied coverage of O'Neal's claim for home
health benefits after determining that her absences from the home are neither
infrequent or of very short duration, nor attributable to the need for
medical
treatment. O'Neal appealed the determination and eventually received a fully
favorable decision from a federal administrative law judge (ALJ). After
discovering that the decision had no prospective effect on her entitlement to
Medicare benefits, even though her condition remained unchanged, O'Neal sought
a determination from PGBA , as to whether a Medicare certified home health
agency would be reimbursed for any services it provided to her. The
intermediary acknowledged that O'Neal met the first part of the "confined to
home" definition, but determined that her frequent and varied non-medical
absences from home disqualified her from coverage of the services previously
billed. PGBA also concluded that it is not obligated to apply the ALJ's
decision to future coverage determinations.
By receiving the ALJ decision, O'Neal exhausted the administrative remedies
available to beneficiaries. Through PGBA, HCFA has refused to accept the ALJ
decision and restore O'Neal's coverage, even though it allowed the decision to
become final without a challenge.
Since the Medicare claim denial, O'Neal has received free home health services
from a provider that does not participate in the Medicare program. The agency
recently informed her that it no longer can provide her with free care. As of
May 1, O'Neal does not have access to the home health services she needs to
live safely in a home setting.
Like O'Neal, Plaintiff Patricia Rote, a 52-year-old multiple sclerosis patient
from Maryland, has had claims for vital home care services denied by a
Medicare fiscal intermediary through a haphazard application of the "confined
to home" requirement. Rote is completely dependent on comprehensive skilled
nursing and home care aide services to manage her health conditions and
perform the basic skills of daily living. She requires 24-hour assistance with
an attendant to maneuver her wheelchair and to transfer her from bed to chair
and is unable to leave her home without a tremendous degree of difficulty.
The third beneficiary plaintiff, 53-year-old Helen Gunkler of Minnesota, also
is a multiple sclerosis patient, additionally afflicted with diabetes. Gunkler
lost her Medicare home health benefits because she leaves her home to do such
things as teach classes on chronic disease and spirituality to medical
students at the University of Minnesota.
Serving as the final plaintiff, NSCIA is a nonprofit advocacy group for
individuals with spinal cord injuries and disease. Founded in 1948, it
promotes community inclusion for persons with paraplegia, quadriplegia, and
other disabilities.
Legal representation for the plaintiffs is being provided by the Governor's
Advocacy Council for Persons with Disabilities (GACPD) in North Carolina and
the Washington, D.C.-based Center for Health Care Law (CHCL).
According to William A. Dombi, director of CHCL, HCFA's denials are
"irrational and unexplained" coverage determinations that fail to address the
individual patient's needs, the attending physician's opinion, changes in
health care technologies and services, and the spirit of community inclusion.
"HCFA's policy and practice of timing the 'confined to home' analysis after
patients have received mechanical and personal assistance arbitrarily and
capriciously denies home health services benefits to Medicare enrollees who
use a considerable and taxing effort to leave their homes," Dombi said. "Under
this standard, virtually all home care patients would not meet the 'confined
to home' requirement since the use of sufficient mechanical and personal
assistance would allow even the most medically fragile to be transported out
of their homes."
GACPD and CHCL officials estimate that roughly one million Medicare patients,
primarily younger beneficiaries with severe disabilities, have circumstances
similar to those of the plaintiffs, forcing them to rely on skilled nursing
and home care aide services in order to occasionally leave their homes to
function as productive members of society by working, taking care of their
children, volunteering within the community, and helping to support the
economy.
"The principal problem here is that the Medicare program hasn't kept pace with
the changing times," said William A. Hatch, GACPD's assistant general counsel.
"Modern technology is enabling greater numbers of persons with disabilities to
receive cost-effective health and supportive care in the home and to regain
mobility through the use of assistive devices. Without these services, these
patients are bed-bound.
"The United States Congress has determined that it is necessary for public and
private programs be available and operate in a manner that recognizes and
respects an individual's disability while establishing goals of equality of
opportunity, full participation, independent living, and economic self
sufficiency," Hatch added. "HCFA's interpretation of the homebound definition
is in direct contrast to what the Americans with Disabilities Act is telling
us to do."
As part of the Balanced Budget Act of 1997, Congress has required HCFA to
conduct a study on the appropriateness of the current homebound definition. A
report on the study is due by October 1998. In the past, HCFA has proposed
further restrictions in the homebound requirement.
The plaintiffs in the lawsuit will seek a preliminary injunction in an effort
to secure early relief for O'Neal, who lost care as of May 1. A hearing on the
injunction is likely to be scheduled in a few weeks.
To obtain a full copy of the plaintiffs' written complaint, please contact
Margo Gillman at 202/547-7424, or consult the "News Bureau" section of CHCL's
web site at http://www.nahc.org.
GACPD is a civil rights protection agency committed to serving citizens with
disabilities. As a state and federally funded division of the North Carolina
Department of Administration, it provides advocacy and legal services for
people with disabilities to protect and advance their rights, their dignity,
and their opportunity to make choices.
Founded in 1987, CHCL is a nonprofit public interest law firm committed to
protecting the legal rights of home care and hospice providers and the
patients they serve. Affiliated with the National Association for Home Care,
it provides expert legal advice and sponsors educational programs on legal
issues affecting the home care and hospice industry.