Understanding Medicaid Home and Community Services: A Primer, 2010 Edition. Mandatory State Plan Services: Home Health


Since 1970, services under the Home Health benefit have been mandatory for people entitledto nursing facility care.7 States are mandated to cover nursing home care for categorically eligible persons age 21 or older. This mandate entitles persons age 21 or older to nursing facility care. States have the option to cover nursing home care for other Medicaid beneficiaries as well, such as persons under age 21. If a state chooses to cover persons under age 21, they would also be entitled to nursing home care. However, being entitled to nursing home care does not mean that one is eligible for nursing home care. In order to receive Medicaid-covered nursing home care, entitled persons must also meet nursing home eligibility criteria--called level-of-care criteria.8 (See Chapter 3 for additional information about eligibility for services under the Home Health benefit.)

Federal regulations require that Home Health services include nursing, home health aides, medical supplies, medical equipment, and appliances suitable for use in the home. States have the option of providing additional therapeutic services under the Home Health benefit--including physical therapy, occupational therapy, and speech pathology and audiology services.9 States may establish reasonable standards for determining the extent of such coverage using criteria based on medical necessity or utilization control.10 In doing so, a state must ensure that the amount, duration, and scope of coverage are reasonably sufficient to achieve the purpose of the service.11 All Home Health services must be medically necessary and authorized by a physician’s order as part of a written plan of care.

In 1998, following the ruling of the U.S. Court of Appeals for the Second Circuit in DeSario v. Thomas, CMS sent a letter to State Medicaid Directors clarifying that states may develop a list of pre-approved items of medical equipment as an administrative convenience but must provide a reasonable and meaningful procedure for beneficiaries to request items that do not appear on such a list.12 Home Health services are defined in Federal regulation as services provided at an individual’s place of residence. In 1997, however, the Federal Court of Appeals for the Second Circuit ruled in Skubel v. Fuoroli that home health nursing services may be provided outside the home, as long as they do not exceed the hours of nursing care that would have been provided in the home.13 (See Chapter 3 for additional information on this ruling.)

  TABLE 1-1. Medicaid’s Legislative Provisions Regarding Long-Term Care Services  
1965   Establishment of Medicaid14
  • Mandatory coverage of SNFs for categorically eligible persons age 21 or older.
  • Optional coverage of Home Health services and Rehabilitation services.
1967 Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) mandate for children under age 21.15
States given the option to provide services not covered by their State Plans under EPSDT.
1970 Mandatory coverage of Home Health services for those entitled to SNF services.16
1971 Optional coverage of intermediate care nursing facilities and ICFs/ID.17
1972 Optional coverage of children under age 21 in psychiatric hospitals.18
1973 Option to allow people receiving supplemental security income (SSI) to return to work and maintain their Medicaid benefits.19
1981 Establishment of HCBS waiver authority.20
1982 Option to allow states to extend Medicaid coverage to certain children with disabilities who live at home but who, until this 1982 provision, were eligible for Medicaid only if they were in a hospital, nursing facility, or ICF/ID. Also known as the Katie Beckett or Tax Equity and Fiscal Responsibility Act (TEFRA) provision.21
1986 Option to cover targeted case management (TCM). States are allowed to cover TCM services without regard to statewideness and comparability requirements.22
Option to offer supported employment services through HCBS waiver programs to individuals who had been institutionalized some time prior to entering the HCBS waiver program.23
1988 Establishment of special financial eligibility rules for institutionalized persons whose spouse remains in the community, to prevent spousal impoverishment.24
1989 EPSDT mandate amended to require states to cover any service a child needs, even if it is not covered under the State Plan.25
1993/94   Removal of requirements for physician authorization and nurse supervision for personal care services provided under the State Plan. States explicitly authorized to provide personal care services outside the individual’s home.26 Personal Care added to the statutory list of Medicaid services. (Personal Care was an option since the mid-1970s, when it was established administratively under the Secretary of Health and Human Services’ authority.)
1997 Removal, under the Balanced Budget Act of 1997, of the “prior institutionalization” test as a requirement for receiving supported employment services through an HCBS waiver program. Addition of first opportunity for states to create a Medicaid “buy-in” for people with disabilities. Establishment of the Program of All Inclusive Care for the Elderly (PACE) as a State Plan option.
1999 Additional options under the Ticket to Work and Work Incentives Act for states to create a buy-in program for people with disabilities and to remove employment barriers.27
2005 Establishment of a new Medicaid State Plan authority for providing HCBS under §1915(i) of the Social Security Act, under the Deficit Reduction Act of 2005 (DRA-2005), effective 2007. The DRA-2005 also expands options for Medicaid participants to direct their services under HCBS waivers and State Plan Personal Care programs, through §1915(j) of the Social Security Act.
2010 Establishment, under the Affordable Care Act of 2010, of a new authority under §1915(k) of the Social Security Act, effective October 2011. This authority allows states to provide “Community-based Attendant Services and Supports” under the Community First Choice Option.

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