(June 26, 2018): The coverage of personal care services by Medicare has been advocated by advocacy groups for many years. As we reported last April, the Centers for Medicare and Medicaid Services (CMS) announced in its Final Call Letter for bids from plans that participate in the Medicare Advantage program (MA) for 2019. In that Bid Letter, CMS announced that MA plans would be permitted to cover as supplemental benefits, certain types of health-related services even if the primary purpose of those services is daily maintenance. Previously, CMS had considered an item or service to be primarily health related “…if the primary purpose of the service is to prevent, cure or diminish an illness or injury,” but not if the primary purpose is simply daily maintenance. As I noted in that article, that will change beginning in 2019.
I. CMS Has Confirmed the Coverage of Personal Care Services by Medicare Advantage Plans in 2019:
At the time that I wrote that article, we posited that it was likely, but not made clear, that plans would be able to cover personal care services under the revised standards for supplemental benefits. However, that appears to have now been confirmed that the new definition covers these services. In a speech that she made in May of this year at a conference presented at CMS Headquarters, Seema Verma, the Administrator of CMS stated:
“For the first time ever, Medicare Advantage beneficiaries can access significant new flexibility for additional benefits that can help them live healthier, more independent lives. [MA] plans can offer benefits [beginning in 2019] that compensate for physical impairments, diminish the impact of injuries or health conditions, or reduced avoidable emergency room utilization. This means Medicare Advantage beneficiaries will be provided adult day care services, respite care for caregivers, and in-home assistance with activities like bathing and managing medications. Additionally, Medicare Advantage beneficiaries will have access to safety devices to better prevent injury in the home ….”
Also at the conference, two CMS employees made a presentation the slide deck for which listed as examples of supplemental benefits that plans will now be able to cover in 2019, “Adult Day Care Services, Home-Based Palliative Care, In-Home Support Services, Transportation for Non-Emergent Medical Services, and Home & Bathroom Safety Devices and Modifications.” That same slide deck describes the type of In-Home Support Services that MA plans will be able to cover as:
“In-home support services performed by a personal care attendant or by another individual that is providing these services consistent with state requirements in order to assist individuals with disabilities and/or medical conditions with performing ADLs and IADLs as necessary to compensate for physical impairments, ameliorate the functional/psychological impact of or health conditions, or reduce avoidable emergency and healthcare utilization. Services must be performed by individuals licensed by the state to provide personal care services, or in a manner that is otherwise consistent with state requirements.
Thus, it is clear that MA plans will now be authorized to cover personal care services in the home beginning in January 2019, if they so choose. The slide show presentation also specifies as requirements that the services: (a) must be medically appropriate; (b) must focus directly on an enrollee’s health care needs; (c) must be recommended by a physician or licensed medical professional as part of a care plan if not directly provided by one; must not be used primarily for comfort, general use, or other non-medical reasons; and (d) must not include items or services used to induce enrollment.
II. NEXT STEPS FOR YOUR AGENCY:
Agencies and other providers that wish to provide these services to plan beneficiaries in 2019 should already have been speaking with the appropriate people at the MA plans that provide coverage in their service areas about covering these services in 2019, and should be speaking with the plans regarding their interest and requirements for becoming participating providers of these services. If the plans are not covering these services in 2019, these agencies should be developing and presenting data that demonstrate cost-effectiveness of these programs, e.g.in preventing or reducing ER and hospital utilization, in order to convince the plans to cover these services in 2020 and thereafter.
Additionally, as I pointed out in our April article on the topic, the Bipartisan Budget Act of 2018 expands even further the supplemental benefits that MA plans may provide in 2020 and thereafter, to cover services that address certain social determinants that we now are discovering to be related to health. Agencies should be tracking the progress of implementation of this provision as CMS begins to provide additional guidance on implementation, and also should begin speaking with their MA plans and developing data that support coverage of certain of these services that they wish to provide.
Finally, MA plans will expect providers of home and personal care that wish to be participating providers to have developed and implemented an effective compliance plan. This will be especially critical given some of the compliance issues that have arisen in the past, of which they almost certainly will be aware. In this regard, MA plans will almost certainly require that providers have a system for tracking their aides, which will also be required under state Medicaid programs in the future.
This article should be read in conjunction with the April article which goes into a bit more depth on the issues in the prior section. CMS has now confirmed that MA plans will be afforded the opportunity to cover home and personal care services beginning in 2019. Michael Cook and other Liles Parker attorneys have extensive experience in assisting clients throughout the health care industry, including home and personal care and home health agencies, in responding to new government and payor initiatives, and in establishing and maintaining an effective compliance program. Anyone seeking a copy of either the speech by Seema Verma or the slide deck should contact Michael at the contact information provided, below.
Michael Cook is a Partner and Co-chair of the Health Care Group at Liles Parker PLLC. Mr. Cook has extensive experience in representing providers and suppliers of all types, including home and personal, and home health, agencies in regulatory, compliance, policy, and business matters throughout the country. Mr. Cook also serves on the Board of the agency that advises Virginia’s Medicaid program. Anyone interested in discussing the material presented in this article should contact Michael Cook at 202-298-8750 or email@example.com.
 Speech: Remarks by Administrator Seema Verma at the Medicare Advantage and Prescription Drug Plan Spring Conference (As prepared for delivery – May 9, 2018).
 Slide deck, Medicare Advantage Benefit Flexibility (Supplemental Benefits and Uniformity) presented by Heather Kilbourne, Division of Policy, Analysis, and Planning, Medicare Drug and Health Plan Contract Administration Group, Center for Medicare, CMS and Brandy Alston, Division of Policy, Analysis, and Planning, Medicare Drug and Health Plan Contract Administration Group, Center for Medicare, CMS.
 Id. These requirements should not present a burden to home care agencies that participate in Medicaid given that many, if not all, states place similar requirements on personal or home care providers under that program.