Home health insiders have largely reacted positively to the Centers for Medicare & Medicaid Services’ (CMS) focus on fraud, waste and abuse in home health, but many have spoken out against the newly-instituted moratorium on home health and hospice Medicare enrollment.

Providers told Home Health Care News that the moratorium, which does not allow home health agencies to grow via de novo, will curb their abilities to grow their businesses – and can therefore limit access to care.

Dean Alverson, president and CEO of LifeCare Home Health Family, told HHCN that while the organization understands and supports efforts to curb fraud, the moratorium may unintentionally limit compliant providers’ ability to scale, invest in new communities and meet rising demand.

“The moratorium will impact our organization’s plans for growth and may affect broader operations,” Alverson wrote in an email. “We have been successfully expanding access to care through a de novo strategy, particularly in underserved and high-demand markets. Under the current moratorium, that approach will no longer be available, limiting our ability to respond to growing patient needs and to help offset existing shortfalls in access to home health and hospice services.”

Alverson said the moratoria could limit access to care in the short term – an outcome he added is not CMS’s intent – and argued that they are therefore not an appropriate approach to addressing home health or hospice fraud.

LifeCare Home Health offers Medicare-certified home health, private duty and hospice services through seven additional brands, serving communities in Texas, Florida, Nevada and Arizona.

For franchise home-based care provider Interim HealthCare, the focus will shift to supporting franchise partners in growing their businesses within their current geographies.

“The moratorium will impact our plans for expansion,” Rexanne Domico, president and CEO of Interim HealthCare. “We are a franchise network, and our local franchise partners serve their communities. Places where they live, work and participate in community activities. Places where they know care is needed and many are underserved. These types of providers will feel the pain of this overreaching decision more than larger national providers.”

Sunrise, Florida-based Interim provides home health, hospice, palliative and pediatric care, as well as medical staffing, through over 300 care centers.

Dan Borraga, the senior vice president of operations at Interim, said that the company completely agrees with the crackdown on fraudulent providers and advocates strongly for any program that weeds out the bad actors – but that the moratorium also harms compliant providers.

“A nationwide moratorium makes no sense in the current environment,” Borraga told HHCN in an email. “This move hurts local and national businesses that are playing by the rules, and it limits access for the people who desperately want to age in place and receive critical care services in the comfort of their homes.”

The moratorium does still allow for changes of ownership. But its move to prohibit providers from entering new geographies will most impact rural and underserved areas that do not currently have sufficient access to care, Hillary Loeffler, the vice president of policy and regulatory affairs at the National Alliance for Care at Home (the Alliance), told HHCN.

While still allowing for changes of ownership, the moratorium does raise questions for in-flight home health transactions.

“It’s really going to depend on the facts of the transaction and the target, its enrollment history and history,” Michelle Huntsman, a partner at Holland & Knight’s Houston health care law team, told HHCN. “Buyers need to be doing additional diligence and make sure they fully understand any prior changes of ownership that the target has undergone. They should also be doing very significant compliance reviews, because I anticipate transactions, change of ownership, will be on CMS radar for additional compliance reviews. I think that they should be prepared for processing times to be slower across the board.”

Providers should all aim to maintain a culture of compliance, Huntsman said, and ensure billing, coding is up to par. They should review the OIG’s compliance plan parameters, and understand how that compliance plan works in practice for their specific organization. They should bring questions to outside counsel, she continued.

The rationale behind the moratorium

During the six-month moratorium, CMS said that it would intensify investigations, deploy advanced data analytics and expedite the removal of suspected fraudulent providers. 

The moratorium signals a broader federal shift toward enforcement of compliance actions in the health care market, according to Huntsman.

“We will continue to see investigations, congressional hearings and just scrutiny of hospice and home health across the entire country,” Huntsman told HHCN.

CMS stated that the moratorium was instituted nationwide to prevent bad actors from simply shifting their operations across state lines. Loeffler questioned this logic.

“There’s not enough justification in CMS’ notice as to why they think this fraud problem is nationwide,” Loeffler said. “They declare that it is, but they really haven’t presented in our minds sufficient information to justify taking such a broad brush approach.”

The decision to put a moratorium on home health as well as hospice may have been made with a similar logic – to stop fraudulent hospice providers from simply shifting their operations to home health.

“If you’re going to crack down on hospice, I think maybe the fear of CMS is that it’s just going to shift to home health, so let’s do it together,” Loeffler said. “Because they are often co-located and intertwined.”

CMS has previously enacted a home health moratorium in 2013, which was extended and revised several times before eventually expiring in 2019. It is not out of the question that this new moratorium would also be extended longer than the initial six-month period, Huntsman said, and in fact is “somewhat likely” that it will be extended. 

Loeffler suggested that it is difficult to anticipate when CMS will lift the moratorium, because the agency did not share any markers or goal posts in its announcement. The fear, therefore, is that the moratorium will be renewed like the one instituted in 2013, she said.

“They have the tools, they have review choice, they’ve done the provisional period of enhanced oversight for hospices, they’ve been talking about AI and machine learning and algorithms that they’ve been using to better target and find these fraudulent actors,” Loeffler said. “We support those targeted approaches. Let’s deploy them. This moratorium worries us, because you have those tools already, you’ve deployed them already, and so what is it going to take to lift this moratorium? There’s no clear bar that CMS has provided publicly on what they want to see from us.”