Certified Home Health Agency (CHHA) Home Care Services under Medicare & Medicaid in New York

by David Goldfarb Goldfarb Abrandt Salzman & Kutzin LLP

Persons being discharged from a hospital or nursing home will often first get home health services under Medicare and Medicaid from a Certified Home Health Agency (CHHA).   Medicare CHHA services are limited and have strict criteria. Medicare CHHA services are only available if the recipient is homebound and requires the intermittent services of a skilled nurse or therapist. Medicare CHHA home health aide services are usually limited to 28 hours per week or less. Most CHHAs are certified under both the Medicare and Medicaid programs.

However, Medicaid has no such restrictions. Medicaid may provide continuous 24 hour care.  Many CHHAs will provide these services while a Medicaid application is pending.  There is, in fact a presumptive eligibility program where upon discharge from a hospital, and if prescribed by a physician, CHHA services are available without any further eligibility determination. N.Y. Soc. Serv. Law § 364-i; 18 NYCRR § 360-3.7(a).  However, most CHHAs do not rely on the presumptive eligibility program, but rather just provide “Medicaid pending” assuming they will be reimbursed once the Medicaid application is granted.

CHHA services include nursing services provided on a part-time or intermittent basis; physical, occupational, and speech therapy; and home health aide service. 18 NYCRR § 505.23(a)(3).

The provision CHHA services do not require Medicaid agency approval. The care is ordered by a physician and the CHHA determines whether to accept the applicant-recipient.  A person is accepted for CHHA services and CHHA services are renewed every sixty days based on a treating physician’s orders. Pursuant to current case law there are no appeal rights from a CHHA’s determination to accept, terminate or reduce care when that decision is in accord with the treating physician’s orders. However there are rights limited to adverse actions taken contrary to a treating physician’s orders. Catanzano v. Dowling, 60 F.3d 113 (2d Cir 1995), aff’d in part, vacated in part, 103 F.3d 223 (2d Cir. 1996); 18 NYCRR § 505.23

If the CHHA determines that the home health services that the physician has ordered would not maintain the recipient’s health and safety, the CHHA must consult with the physician. If the applicant/recipient is hospitalized the CHHA must refer the case back to the hospital discharge planner to locate another CHHA that will agree to accept the recipient. If the discharge planner is unable to locate another CHHA, the discharge planner or the original CHHA must refer the recipient’s case to the social services district. If the applicant/recipient is not hospitalized, the CHHA must refer the case to the social services district. The district must refer the case to the local professional director or designee who will review the documentation and determine whether CHHA services should be denied or provided according to the physician’ s order. If the services are denied, then the district shall send a notice including the applicant/recipient’s fair hearing rights. If it is determined CHHA services should be provided according to the physician’s order, the district must refer to a CHHA that will agree to accept the recipient or direct a CHHA to accept the recipient.

For existing CHHA recipients or CHHA recipients who have been temporarily hospitalized or temporarily in a nursing home, if the CHHA determines that the services ordered by the physician can no longer maintain the recipient’s health and safety, or to reduce services because the services are no longer medically necessary, the CHHA must consult with the physician and then refer the case to a CHHA that agrees to provide the services or refer the case to the social services district and continue to provide services until notified otherwise by the social services district. The district must forward the case to the local professional director or designee who will review the documentation and determine whether CHHA services should be continued according to the physician’ s order. If it is determined to discontinue services then the district must send the recipient a timely and adequate notice. And if a fair hearing is timely requested, The CHHA must continue to provide the recipient with aid-continuing. If it is determined that services should be provided according to the physician’s order, the district must order the CHHA to provide the services according to the physician’s order.

There are certain exceptions where a CHHA does not have to refer a denial or discontinuance to the social services district, in addition to when the treating physician agrees with the CHHA. These include where the conditions in the home pose an imminent danger to the CHHA personnel or jeopardize their ability to provide care; or where the CHHA has valid reason to believe its personnel are subject to continuing and severe verbal abuse which will jeopardize its ability to secure sufficient staff or provide care.  18 NYCRR § 505.23 and 10 NYCRR § 763.5(h)(2) and (b)(2)(ii) and (iii).  There are also special procedures where the recipient has requested the termination of services.   18 NYCRR § 505.23 [APPENDIX 1 at E. Recipients’ Requests To Be Discharged].

The usual method to appeal aMedicaid decision to reduce services is by requesting a fair hearing.  A fair hearing is a formal procedure provided by the state upon the request of an applicant or recipient to determine whether an action taken by a local agency, or the agency’s failure to act, was correct.   An archive of state fair hearing decisions is available on-line at http://www.otda.state.ny.us/oah/FHArchive.asp.  However, the denial, reduction or termination of home health services by a CHHA, is not considered a Medicaid agency determination; but, there is a right to a fair hearing where there is a dispute between the CHHA and a treating physician.   Catanzano v. Dowling, 60 F.3d 113 (2d Cir. 1995), vacated, remanded, 277 F.3d 99 (2d Cir. 2001). But see Bernam v. Daines, 2010 U.S. Dist. LEXIS 128120 (E.D.N.Y. 2010) which denied a CHHA’s motion on the pleadings in that a doctor’s  actions may be attributed to the State (and give rise to fair hearing rights) if  the CHHA provided significant encouragement to the doctor’s benefits prescriptions by presenting completed plans of care to the physicians for sign-off.

There are two major changes in the The New York State 2011 Budget Bill (2011 N.Y. Laws 59) effecting CHHA serices:

  1. Effective April 1, 2011, The New York State Public Health law was amended to change the methodology by which CHHAs are reimbursed for the provision of CHHA services to Medicaid recipients. N.Y. Pub. Health Law § 3614(12).  Prior to April 1, 2011, CHHAs were reimbursed for home health services on a fee for services basis.  After April 1, 2011, rates of reimbursement include “ceiling limitations” which prevent CHHAs from being fully reimbursed for high hour cases.  Although these ceilings are purportedly designed to discourage CHHAs from authorizing more care than necessary for a recipient, they in fact create a significant incentive for CHHAs to deny or discontinue these high hour cases. There are already a number of cases pending in federal court challenging CHHAs who have tried to cut patient home care hours.
  2. The New York State 2011 Budget Bill (2011 N.Y. Laws 59) authorizes, subject to federal approval, that all CHHA recipients and applicants be enroll in a Managed Long Term Care Plan. The State has requested a federal waiver for this change.