Home Health & Hospice Week

Access fears are ‘irrelevant and incorrect,’ government attorneys argue.

As home health agencies hunker down for the impact of the behavioral adjustment reductions that will hit Jan. 1, the feds are combating the industry’s legal challenge to the cuts.

Reminder: Back in July, the Centers for Medicare & Medicaid Services published the 2023 home health proposed rule, which floated “an estimated 5.1 percent decrease, as required by statute, that reflects the effects of the proposed prospective, permanent behavior assumption adjustment” (see HHHW by AAPC, Vol. XXXII, No. 24-25). The National Association for Home Care & Hospice then filed a suit against the Department of Health and Human Services challenging that methodology, claiming that CMS didn’t implement the Patient-Driven Groupings Model in a budget-neutral manner as required by law. CMS reduced the behavioral adjustment cut with a partial postponement in the final rule, but the legal challenge continues.

Now the Department of Justice, representing HHS, has filed a motion to dismiss the case, or for the judge to rule in favor of the government in pre-trial summary judgment. Among the filing’s arguments are that NAHC should have gone through the full Medicare appeals process. “NAHC’s members have failed to exhaust their administrative remedies, and they should not be permitted to end-run the agency’s processes through litigation,” says the 54-page motion.

And while “NAHC alludes at several points to how CMS’s methodology may affect home health providers and access to care,” those policy arguments “are both irrelevant and incorrect,” the feds maintain in the filing.

Home health agencies are being greedy, the motion suggests. “Congress instructed the agency to correct its assumptions and implement adjustments to account for actual behavioral changes, including decreases in services provided, even if that might cut into home health providers’ margins,” the DOJ attorneys argue.

NAHC also has “a warped understanding of the policy goals that Congress — and CMS — sought to accomplish in eliminating therapy thresholds,” the motion adds.

Another argument is that “the Court should not take the extraordinary step of throwing the entire Home Health Prospective Payment System into chaos for the benefit of just two providers who claim to have been harmed yet have not meaningfully attempted to present and exhaust their claims before the agency.”

And the government attorneys warn that “vacating — and then potentially reinstating — the methodology in the 2023 Rule would wreak havoc on CMS’s claims and payment systems,” among other operational problems.

NAHC, however, is taking the motion in stride. “The government’s position in responding to the NAHC lawsuit … was fully expected,” NAHC President William Dombi says in a statement shared with AAPC. “Virtually every lawsuit against Medicare includes an effort to dismiss the case on the grounds that the court does not have the power to adjudicate the complaints. Medicare is simply trying to avoid getting the court to focus on the actual merits of our lawsuit,” Dombi maintains.

“We will have our day in court where we will establish that Medicare has violated the law with the payment rate cuts,” Dombi pledges. “That law requires that the PDGM payments result in ‘budget neutral’ spending on home health services. Reduced Medicare spending, never-ending roadblocks to access to care, and closures of home health agencies does not equal budget neutrality for patients or providers,” Dombi concludes.

Note: NAHC’s original complaint is at https://nahc.org/wp-content/uploads/2023/07/NAHC-Sues-HHS-Over-HH-Cuts.pdf.