The news comes just two days after the home health proposed payment rule was released, which included significant cuts for the third straight year.

Broadly, moving away from the Chevron precedent – usually known as the Chevron doctrine – will mean less regulatory power for government agencies. Government agencies often take their own interpretations of certain laws and statutes, and then act upon those interpretations. Moving forward, it’s likely that these agencies will need more explicit direction from Congress to regulate on firm standing.

The reaction to the Supreme Court decision has mostly been centered around issues like the environment and reproductive rights.

But the decision could also be the breakthrough that home health providers needed to stop – and potentially undo – payment cuts. This week, CMS proposed a 1.7%, or $280 million, decrease to aggregate home health payments for 2025. The final rule is expected in late October or early November.

The National Association for Home Care & Hospice (NAHC) already filed a lawsuit against the U.S. Department of Health & Human Services (HHS) and CMS over rate cuts in 2023.

“In our own analysis, we believe that providers of home health have been underpaid as it relates to budget neutrality,” NAHC President William A. Dombi said when the lawsuit was filed. “At minimum, we would expect to see the rate cuts from 2023, that were permanent readjustments to the base rate, and the one proposed for 2024, along with the temporary adjustments … to go away. The end product of that is that we would have a stable system to deliver home health services to Medicare beneficiaries.”

NAHC has now re-filed that lawsuit, after it was initially dismissed by a federal court.

Even before Chevron was officially overturned, there was evidence to suggest that the Supreme Court was moving away from its line of thinking. The first was in West Virginia v. Environmental Protection Agency (EPA), where the court undercut the EPA’s power in restricting carbon dioxide emissions.

In a health care context, it showed up in American Hospital Association v. Becerra, which was similar to the current NAHC lawsuit.

Like West Virginia v. EPA, the AHA v. Becerra case went the opposite direction of the Chevron precedent.

Prior to 2020, CMS proposed a series of policy changes for hospitals, one of which would have reduced payment, specifically through the 340B drug pricing program. For context, 340B hospitals are generally those that serve lower-income or rural populations.

The 340B cuts represented at least $1.6 billion in lost revenue annually for hospitals.

Like NAHC will with home health cuts, the AHA argued those cuts would hurt patient care, and that CMS did not have the power to levy those cuts in the first place.

In 2022, the Supreme Court ruled unanimously against HHS and CMS in that case. It was later ruled, too, that CMS pay hospitals back for the underpayments, with interest.

“The Supreme Court basically said the law requires certain actions to be taken by CMS in setting the hospital rates as it relates to the 340B, and they had two ways to go. And CMS chose not to go those two ways,” Dombi told HHCN in 2022. “What we’ve got going on in the home health payment rule is a comparable legal argument that starts with the position that the law does not allow CMS to do what it did do on the budget neutrality methodology. And second, that the law requires a specific set of actions, none of which the CMS methodology complies with.”

Home health advocates have lobbied against CMS cuts through public comments during the time between the proposed and final rules. They’ve provided data and storytelling to do so. They’ve also successfully lobbied lawmakers to introduce the Preserving Access to Home Health Act in both the Senate and the House, but that legislation hasn’t moved forward in past years.

A lawsuit was not the desired outcome for NAHC, but one of its last options. Now, that lawsuit may have more wind behind its sails.

“It improves the chances of success for our lawsuit going forward,” Dombi told HHCN Friday, regarding the Chevron decision. “It also means Congress is going to have to offer more detail in its legislative language, leaving less to the administrative agency to bring in interpretations. That, in many ways, is a good thing too.”

The post How The Supreme Court’s Chevron Decision Could Help Stop Home Health Cuts appeared first on Home Health Care News.

In the end, the Occupational Safety and Health Administration (OSHA) “soft” mandate was shot down by SCOTUS by a 6-3 count. The mandate would have applied to all private businesses with 100 employees or more, requiring workers to either be vaccinated or tested regularly.

However, the Centers for Medicare & Medicaid Services (CMS) mandate – which requires all home health care workers to be vaccinated against COVID-19 – was allowed to stand. The final ruling from SCOTUS was 5-4 in the administration’s favor.

The latter ruling offers more clarity for home health providers, but does not completely clear the mandate from further litigation.

“Today’s decisions from the U.S. Supreme Court brings home care a step closer to the essential clarity that is needed to determine what is required for compliance,” National Association for Home Care & Hospice (NAHC) President William A. Dombi said in a statement shared with Home Health Care News. “The OSHA rule is blocked from implementation and enforcement for the moment. The CMS rule can take full effect for the moment. Both cases return to the lower courts for further adjudication.”

For now, home health providers will have to begin prepping for fines if they do not reach compliance by Feb. 28, when workers are expected to be fully vaccinated. CMS is requiring staff to have received one COVID-19 vaccine dose by Jan. 27.

Broadly, a group of states fighting the CMS mandate argued its policy was a legal overreach by the U.S. Department of Health and Human Services (HHS) and Secretary Xavier Becerra.

“[We] agree with the Government that the Secretary’s rule falls within the authorities that Congress has conferred upon him,” the SCOTUS opinion on the CMS mandate states. “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’”

Click to access 21a240_d18e.pdf

SCOTUS also noted in its opinion that the mandate “fits neatly” into the authorities given to HHS.

“COVID–19 is a highly contagious, dangerous, and – especially for Medicare and Medicaid patients – deadly disease,” the judges continued. “Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps and rubella.”

The court also ruled that the rule was not “arbitrary and capricious,” as Missouri and a slew of other states had argued in their effort to block the mandate.

Katie Smith Sloan, president and CEO of LeadingAge, called vaccines “the most powerful tools” aging services providers have in their battle against COVID-19.

“They save lives,” she said in a statement. “While mandates can sometimes make it harder for employers to keep or find qualified workers – especially as Omicron surges and workforce challenges are growing – we encourage all members, regardless of care setting or community type, to ensure staff get vaccinated.”

In a statement issued shortly after the Supreme Court news broke, CMS Administrator Chiquita Brooks-LaSure said her agency is “extremely pleased” by the decision.

“CMS is already implementing its health care worker vaccination rule in 25 states and territories that were not covered by preliminary injunctions,” she said. “Today’s decision will enable us to fully implement this rule, and we look forward to working with health care providers and their workers to protect patients. We will continue our extensive outreach and assistance efforts encouraging individuals working in health care to get vaccinated.”

The private-employer mandate, on the other hand, was not viewed by the Supreme Court to be within OSHA’s powers. It would have applied to about 84 million workers.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court wrote in a separate opinion.

The logic of subjecting all workers in these large companies – no matter the demographic of the individual or the industry – was met by members of SCOTUS with significant skepticism.

“Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category,” the court wrote, referring to the OSHA mandate’s broadness.

The post [Updated] Supreme Court Blocks OSHA Mandate, Allows CMS Rule to Take Effect appeared first on Home Health Care News.

No decision has been made on whether the Occupational Safety and Health Administration (OSHA) rule, nor the Centers for Medicare & Medicaid Services’ (CMS) mandate, can legally remain in place either temporarily or indefinitely.

But nonetheless, there were noteworthy takeaways from Friday’s hearings.

Of them: a likely opposition from the court on the OSHA rule, which could subject private businesses with 100 workers or more to vaccine and testing requirements. Dubbed a “soft” mandate, workers in these businesses would either have to be vaccinated or test negative on a regular basis to maintain employment.

Businesses were expected to begin planning “in good faith” for the rule by this month and to be fully compliant by Feb. 9.

At the same time, the justices seemed more receptive to the CMS mandate, which would require all home health workers to be vaccinated against the COVID-19 virus.

Under the mandate, CMS would require staff members at home health agencies to receive one COVID-19 vaccine dose by Jan. 27 and to be fully vaccinated by Feb. 28.

The Supreme Court previously held up state health care worker mandates, which laid some precedent. But that still may not mean much in terms of the federal mandate. After all, some of the justices may believe – and hinted to the fact – that states should handle whether or not to issue mandates.

Questions remaining

Right now, Justices Clarence Thomas, Amy Coney Barrett and Samuel Alito all seem to believe that the Biden administration’s OSHA rule is too broad. In other words, it would subject too many workers, many of whom may be at a lessened risk of hospitalization or death if they contracted the virus.

They were receptive to the idea of a more pointed and specific rule, however.

Other justices also questioned whether a federal agency such as OSHA – or CMS, frankly – could issue such regulations without clear approval and authorization from Congress. Around 100 million people in the U.S. would likely be affected by the mandates if they were to be implemented.

Lawyers argued against both mandates by raising the issue of staffing. Particularly the CMS mandate, which would not allow for testing as an opt-out, would leave thousands of health care workers without a job, thus squeezing the labor market for providers, they said.

The OSHA mandate would also create hiked costs for businesses forced to test millions of workers who chose not to be vaccinated, Scott Keller, a lawyer for the National Federation of Independent Business, argued.

On the other end, however, advocates of the mandates made clear the fact that workers would not be – and have not been – fired for not immediately complying. Instead, they’d have time to get vaccinated as required by law, if the mandate did go into effect.

Furthermore, the Supreme Court’s more liberal justices argued that the virus – one that has killed over 800,000 Americans and is currently infecting over half a million Americans per week – is an obvious case for emergency power.

“It’s an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before,” Justice Elena Kagan said.

While it is not clear exactly when a decision will be made, the Supreme Court agreed to hear the case quickly with a truncated briefing schedule to speed the process along.

The post Supreme Court Seems Skeptical on OSHA Rule, More Receptive to CMS Mandate appeared first on Home Health Care News.

Home care providers appeal to Supreme Court

In Minnesota, a group of home care providers are appealing to the U.S. Supreme Court in hopes of overturning a law that makes a union the bargaining agent for home care providers receiving state funds. Lead plaintiff Teri Bierman and seven others claim that a 2013 Minnesota law that makes the Service Employees International Union (SEIU) their official representatives violates their First Amendment right of free association, the Minneapolis Star Tribune Reported.

The Minnesota development is only the latest salvo against unions and their relationships with home care workers. Legal conflict has picked up ever since the U.S. Supreme Court ruled in June that public employees do not have to pay union fees to help cover the costs of collective bargaining by union groups on their behalf.

Pennsylvania Governor moves ahead with controversial plan

Meanwhile, in Pennsylvania, recently re-elected Gov. Tom Wolf is moving ahead with plans to give thousands of home health care aides the ability to shape workplace policy. The governor’s office said Thursday it had appointed five members to a statewide advisory group that will meet quarterly with the state Department of Human Services and discuss “ways to improve the quality of care delivered” to people who need in-home assistance,” the Pittsburgh Post-Gazette reported.

Oregon hospital closes hospice

In Oregon, St. Anthony Hospital is ending its hospice program because of budgetary concerns. In anticipation of the closure, the hospital has been transitioning most of the hospital hospice’s roughly 40 patients into home hospice care, according to the East Oregonian.

Written by Robert Holly

The post State Spotlight: Home Care Labor Battle, Controversial Advisory Group for Aides appeared first on Home Health Care News.

Southeast Arkansas Hospice Inc. (SEARK) claims it is a constitutional violation to mandate that hospices care for Medicare patients after the government has reached its annual Medicare reimbursement limit, saying in a petition to the U.S. Supreme Court that the practice involves an illegal taking of private property and consequently violates the Fifth Amendment.

Earlier this year, an Arkansas district court and the Eighth Circuit court ruled that SEARK, which operates two hospice locations in Arkansas, must keep caring for Medicare patients, even after the government has hit its annual reimbursement limit. Because SEARK voluntarily entered into the Medicare agreement, the government did not illegally take private property, the courts found.

Entering into a voluntary contract does not mean an agency can be forced to subsidize patients who cannot legally be discharged and whose care Medicare won’t cover, SEARK now argues in its petition. “The government is requiring SEARK to subsidize the care of terminally ill hospice patients for an unlimited number of days in exchange for the right to be in the Medicare hospice program,” SEARK explains.

The main purpose of the Takings Clause in the Fifth Amendment is to prevent the government from forcing some people to bear public burdens alone that in all justice and fairness should be borne by the public as a whole, SEARK says, arguing that subsidizing hospice care for Medicare is a public burden.

“Beyond all other needs this is a burden to be borne by the public, not a single operator,” the petition states.

Meanwhile, the government can’t determine the value of a day of hospice care and then dismiss that value after it has reached the annual limit Medicare can pay the hospice, SEARK argues, calling to mind the Supreme Court’s 2015 ruling in Horne v. U.S. Department of Agriculture.

“In Horne the government calculated and thereby established the fair market amount of just compensation, just as the government herein calculated and established the value of a single day of hospice care,” SEARK says. “The government cannot now disavow that valuation.”

SEARK, meanwhile, couldn’t avoid surpassing the cap because the government never told the agency when it had been reached, SEARK says. As opposed to denying claims, the government keeps paying the hospice and later sends “exorbitant demands for reimbursements,” SEARK says.

“A hospice like SEARK enters the program as something of an expert at providing hospice care but usually not an expert at the Medicare hospice billing program, how they will be paid for services rendered and how the payment system will work against their ability to make a profit providing hospice services to mostly Medicare patients, given that the program is the largest purveyor of hospice services in the country and most hospices operate with a majority of their patients being Medicare hospice patients in their facility,” SEARK says.

Written by Mary Kate Nelson

The post Hospice Reimbursement Caps Challenged in Supreme Court Petition appeared first on Home Health Care News.

The Supreme Court unanimously decided that the implied false certification theory can be a basis for False Claims Act (FCA) liability when a party submitting a claim makes specific representations about its services, but fails to disclose its non-compliance with relevant regulations or laws.

“The decision has far-reaching impact potential on any company that does business with the U.S. government including home health agencies under Medicare,” William Dombi, vice president for law with the National Association for Home Care and Hospice (NAHC), told Home Health Care News in an email. “With this ruling, violations of an expanded group of rules could trigger prosecution and liability under the False Claims Act.”

In the case at hand, Universal Health Services v. Escobar, the Supreme Court found that a government contractor’s Medicaid reimbursement claims were legally false, despite payment conditions not being clearly specified.

Part of the issue lies in the definition of a false or fraudulent claim, as Congress did not explicitly outline the terms in the False Claims Act. As such, the question remained if omissions in health care claims from providers qualified as fraudulent or false.

The court put the issue to bed with its ruling on implied certification.

“We first hold that, at least in certain circumstances, the implied false certification theory can be a basis for liability,” the Supreme Court opinion from Justice Clarence Thomas reads.

A defendant can have “actual knowledge” that a condition is relevant, even if the government does not specifically deem it a condition of payment, Thomas said.

“What matters is not the label that the government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the government’s payment decision,” Thomas wrote.

The Supreme Court also clarified that not all misrepresentations are fraudulent, noting that a misrepresentation cannot be considered material simply because the government designates compliance with a specific requirement as a condition of payment.

“Materiality also cannot be found where noncompliance is minor or insubstantial,” Thomas wrote. “Moreover, if the government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.”

While the ruling could potentially open up more false claims cases, there may still be some interpretations to clarify regulations related to conditions of payment, according to Dombi.

“The court’s ruling is also likely to trigger many years of clarifying interpretation in the lower courts,” he said.

Written by Amy Baxter and Mary Kate Nelson

The post [Updated] Supreme Court Ruling Could Increase False Claims Cases appeared first on Home Health Care News.

Specifically, permitting the government to freeze a defendant’s “untainted” assets prior to trial violates a defendant’s right to a lawyer of his or her choosing under the Sixth Amendment, the court ruled in a 5-3 decision.

Luis was indicted on charges of committing Medicare fraud in 2012. Over a six-year period, the owner of Miami home health agencies allegedly received $45 million in fraudulent reimbursements.

The case before the Supreme Court, Luis v. United States, was seeking to determine whether the government can freeze assets not linked to the alleged crime, such as land, jewelry or cars obtained beforehand. The government had put a freeze on Luis’ untainted assets after her grand jury indictment, alleging she had already spent most of the $45 million she obtained fraudulently.

The Supreme Court previously ruled that the government can freeze property and money linked to criminal activity, or “tainted” assets, prior to a trial.

“We conclude that the defendant in this case has a Sixth Amendment right to use her own ‘innocent’ property to pay a reasonable fee for the assistance of counsel,” Supreme Court Justice Stephen Breyer wrote for the plurality.

Justice Samuel Alito and Justice Anthony Kennedy disagreed with the ruling, which “rewards criminals who hurry to spend, conceal or launder stolen property by assuring them that they may use their own funds to pay for an attorney after they have dissipated the proceeds of their crime,” their dissent said.

Written by Mary Kate Nelson

The post Supreme Court Unfreezes Accused Home Health Fraudster’s ‘Untainted’ Assets appeared first on Home Health Care News.

The case, Luis v. United States, in particular is seeking to determine whether the government can legally freeze a defendant’s legitimately acquired assets.

The defendant, Sila Luis, was indicted on charges of committing Medicare fraud in 2012. Over a six-year period, the owner of Miami home health agencies allegedly received $45 million dollars in fraudulent reimbursements, according to SCOTUSblog.

For two years Luis has been detained in her home as her case traveled to the Supreme Court, NPR reported. Now, Luis wants to utilize some of her “untainted” assets to hire an attorney for her trial.

The Supreme Court has previously ruled that the government may freeze property and money linked to criminal activity, or “tainted” assets, prior to a trial, NPR reported.

Luis v. United States is seeking to determine whether the government can freeze assets not linked to the alleged crime, like land, jewelry or cars obtained beforehand.

The government acknowledges that some of Luis’ financial holdings are not linked to her alleged criminal behavior, NPR reported. Still, prosecutors say that Luis has already spent so much of her tainted assets that if she is found guilty, she will not be able to pay back the Medicare Trust Fund the amount she owes — unless her untainted assets are available to be tapped.

Defense lawyer Howard Srebnick disagrees, arguing that the asset freeze adds up to a denial of the Sixth Amendment right to counsel.

“What the government proposes to do is financially cripple someone before they’ve been convicted, before they’ve had a trial and not allow them to use assets that are theirs to try to match the government in the courtroom,” Srebnick told NPR.

Medicare fraud has emerged as an ongoing problem in the home health industry. Earlier this week, for instance, owners of a home health agency in Texas and two patient recruiters were arrested for allegedly defrauding Medicare.

Last month, Lexington, Kentucky-based Nurses’ Registry and Home Health Corp. was ordered to pay the federal government $16 million for committing Medicare fraud.

Written by Mary Kate Nelson

The post Supreme Court to Decide if Home Health Owner Can Tap Funds appeared first on Home Health Care News.

Workers and organizers with the Service Employees International Union delivered state officials 9,000 union cards signed by workers calling for the election, TwinCities.com reports. These cards represent nearly 35% of potential voters, as the proposed union would include 26,000 people.

If the Bureau of Mediation Services verifies that the union supporters have submitted valid cards from at least 30% of potential voters, then the state agency will notify workers of election terms and distribute ballots, the publication writes.

The petition comes after a recent U.S. Supreme Court ruling that similar workers in Illinois would be exempt from having to join and pay union dues, therefore the union could not collect “fair share” payments from workers who did not want to join.

While the ruling doesn’t prevent Minnesota home care workers from trying to form a union, it will play a role if — and when — it is formed, according to Peter Rachleff, a former labor historian at Macalester College.

TwinCities.com writes: “The Supreme Court decision will have a clear impact on the operations of a union if it’s formed, Rachleff said. The lack of fair share dues could mean less money for the union to hire staff to handle grievances and negotiate collective bargaining agreements, he said.”

A 2013 Minnesota state law allows certain home care workers and some child care providers the chance to organize and collectively bargain in public employee unions, the article states.

To read the full TwinCities.com report, click here.

Written by Emily Study

The post Minnesota Home Care Workers Petition for Union Vote Despite SCOTUS Ruling appeared first on Home Health Care News.