This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0871a.HRS
DATE: 3/27/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 871 Home Health Care Services Under the Medicaid Program
SPONSOR(S): Koster
TIED BILLS: IDEN./SIM. BILLS: SB 868
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Healthcare Regulation Subcommittee Guzzo McElroy
2) Health Care Appropriations Subcommittee
3) Health & Human Services Committee
SUMMARY ANALYSIS
Medicare certification requires home health agencies to provide more than one type of service. However, many
Florida home health agencies provide only one service, and only to state Medicaid enrollees, not Medicare
participants, so they cannot meet Medicare certification standards.
In January of 2022, the Agency for Health Care Administration (AHCA) updated the Medicaid Provider
Enrollment Policy to require home health providers to be either Medicare certified or meet the standards for
certification.
To address this issue, HB 871 requires a home health agency that is providing attendant care nursing services
or private duty nursing services to enroll in the Florida Medicaid program as the attendant care nursing
specialty type or private duty nursing specialty type, or both, as applicable, in order to be reimbursed by AHCA
for such services provided to recipients under the program. The bill provides that a home health agency that
provides only private duty nursing services or attendant care services, or both, through the Florida Medicaid
program is not required to meet federal Medicare conditions of participation or any equivalent accreditation
requirements.
The bill may have a significant, yet indeterminate negative fiscal impact on state government (see fiscal
comments). The bill has no fiscal impact on local government.
The bill provides an effective date of July 1, 2023. STORAGE NAME: h0871a.HRS PAGE: 2
DATE: 3/27/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida Medicaid
Medicaid is the health care safety net for low-income Floridians. Medicaid is a partnership of the federal
and state governments established to provide coverage for health services for eligible persons. The
program is administered by the Agency for Health Care Administration (AHCA) and financed by federal
and state funds. AHCA delegates certain functions to other state agencies, including the Department of
Children and Families (DCF), the Department of Health, the Agency for Persons with Disabilities, and
the Department of Elderly Affairs (DOEA).
The structure of each state’s Medicaid program varies and what states must pay for is largely
determined by the federal government, as a condition of receiving federal funds.
1
Federal law sets the
amount, scope, and duration of services offered in the program, among other requirements. These
federal requirements create an entitlement that comes with constitutional due process protections. The
entitlement means that two parts of the Medicaid cost equation – people and utilization – are largely
predetermined for the states. The federal government sets the minimum mandatory populations to be
included in every state Medicaid program. The federal government also sets the minimum mandatory
benefits to be covered in every state Medicaid program. These benefits include home health services.
2
States can add benefits, with federal approval.
States have some flexibility in the provision of Medicaid services. Section 1915(b) of the Social Security
Act provides authority for the Secretary of the U.S. Department of Health and Human Services (HHS) to
waive requirements to the extent that he or she “finds it to be cost-effective and efficient and not
inconsistent with the purposes of this title.” Section 1115 of the Social Security Act allows states to
implement demonstrations of innovative service delivery systems that improve care, increase efficiency,
and reduce costs. These laws allow HHS to waive federal requirements to expand populations or
services, or to try new ways of service delivery.
Florida operates under a Section 1115 waiver to use a comprehensive managed care delivery model
for primary and acute care services, the Statewide Medicaid Managed Care (SMMC) Managed Medical
Assistance (MMA) program.
3
Florida also has a waiver under Sections 1915(b) and (c) of the Social
Security Act to operate the SMMC Long-Term Care (LTC) program to provide long-term care services,
including nursing facility and home and community-based services, to individuals age 65 and over and
individuals age 18 and over who have a disability.
4
Federal Requirements for Home Health Services in Medicaid State Plans
Home health services are a mandatory Medicaid benefit, which under federal law, states are required to
provide through their state programs.
5
Specifically, a state must provide “for the inclusion of home
health services for any individual who, under the State plan, is entitled to nursing facility services.”
6
Home health services within state plans must include: nursing services; home health aide services; and
medical supplies, equipment, and appliances. Home health services must be provided to: categorically
needy beneficiaries age 21 or over, categorically needy beneficiaries under age 21, if the plan provides
1
Title 42 U.S.C. §§ 1396-1396w-5; Title 42 C.F.R. Part 430-456 (§§ 430.0-456.725) (2016).
2
S. 409.905, F.S.
3
S. 409.964, F.S.
4
Id.
5
Medicaid.gov, Mandatory & Optional Medicaid Benefits, available at https://www.medicaid.gov/medicaid/benefits/mandatory-optional-
medicaid-benefits/index.html (last visited March 26, 2023).
6
Sec, 1902(a)(10)(D), 42 U.S.C. 1396a STORAGE NAME: h0871a.HRS PAGE: 3
DATE: 3/27/2023
skilled nursing facility services for them, and medically needy beneficiaries to whom skilled nursing
facility services are provided under the plan.
7
The states have broad discretion and state plans vary regarding the coverage of home health services.
Medicare Coverage of Home Health Visit Services
Medicare covers “intermittent” skilled nursing home health services, care that is needed fewer than 7
days each week or daily for less than 8 hours each day for up to 21 days.
8
People who require more
than intermittent skilled nursing care would not usually qualify for home health.
Federal Conditions of Participation and Conditions for Coverage
The federal Centers for Medicare & Medicaid Services (CMS) develops Conditions of Participation
(CoPs) and Conditions for Coverage (CfCs) that health care organizations must meet in order to begin
and continue participating in the Medicare and Medicaid programs.
9
These health and safety standards
are intended to maintain quality of care and protect the health and safety of beneficiaries. CMS also
ensures that the standards of accrediting organizations recognized by CMS meet or exceed the
Medicare standards set forth in the CoPs / CfCs (through a process called “deeming”).
One component of the CoPs for home health agencies is Outcome and Assessment Information Set
(Oasis) data. The Home Health Oasis is a standardized data set that measures quality and outcomes. It
contains information regarding the patient such as the clinical condition, comorbidities, physical and
mental state, functional status, living situation and health care needs.
Contrasting Definitions of Home Health Agency
Under Medicare federal law, home health services may include, but are not required to include,
physical therapy, occupational therapy, or speech pathology and audiology services.
10
In other words,
according to CMS, a home health agency “is primarily engaged in providing skilled nursing services and
other therapeutic services.”
11
Under Florida licensure law, a home health agency means “a person that provides one or more home
health services.”
12
Home health services means “health and medical services and medical supplies
furnished to an individual in the individual’s home or place of residence. The term includes the
following:
13
Nursing care;
Physical, occupational, respiratory, or speech therapy;
Home health aide services;
Dietetics and nutrition practice and nutrition counseling; and
Medical supplies, restricted to drugs and biologicals prescribed by a physician.”
Private duty nursing, attendant care nursing, and skilled nursing are services that can be provided by a
licensed practical nurse (LPN) or a registered nurse (RN).
14
Private duty nursing and attendant care
7
42 CFR § 441.15.
8
Centers for Medicare & Medicaid Services, Medicare & Home Health Care, available at https://www.medicare.gov/Pubs/pdf/10969-
medicare-and-home-health-care.pdf (last visited March 26, 2023).
9
Centers for Medicare & Medicaid Services, Conditions for Coverage & Conditions of Participation, available at
https://www.cms.gov/Regulations-and-Guidance/Legislation/CFCsAndCoPs (last visited March 26, 2023).
10
42 C.F.R. §440.70(b).
11
Centers for Medicare & Medicaid Services, Home Health Providers, available at https://www.cms.gov/Medicare/Provider-Enrollment-
and-Certification/CertificationandComplianc/HHAs (last visited March 26, 2023).
12
s. 400.462(12)
13
s. 400.462(15), F.S.
14
Agency for Health Care Administration, Florida Medicaid Home Health Visit Services Coverage Policy (November 2016), available at
https://ahca.myflorida.com/content/download/7034/file/59G-4-130_Home_Health_Visit_Services_Coverage_Policy.pdf (last visited
March 23, 2023). STORAGE NAME: h0871a.HRS PAGE: 4
DATE: 3/27/2023
nursing services can be provided by a home health agency enrolled as a skilled nursing provider or a
home health agency enrolled as a non-skilled nursing provider.
15
A Florida-licensed home health
agency does not have to provide skilled nursing services. A Florida-licensed home health agency may
provide just one service, including non-skilled nursing services such as private duty nursing or
attendant nursing care services. Florida currently covers those services despite a discrepancy created
by a recent change made to the Florida Medicaid Provider Enrollment Policy.
Florida Medicaid Provider Enrollment Policy
In January of 2022, AHCA updated their provider enrollment policy to require home health providers to
be “either Medicare certified or meet the standards for certification.”
16
However, it is not possible for
Florida home health agencies who do not provide skilled nursing services to receive Medicare
certification because Medicare certification requirements require a home health agency to provide
skilled nursing services. Home health providers “meet one of the following requirements to qualify for
limited or full enrollment in Florida Medicaid:
17
Have Medicare certification.
Meet the requirements for Medicare certification by demonstrating compliance during a survey
conducted by the Division of Health Quality Assurance (HQA).
Be accredited and surveyed for deemed status as meeting the CMS CoPs by:
o The Joint Commission (TJC),
o The Community Health Accreditation Partner (CHAP), or
o The Accreditation Commission for Health Care (ACHC)
Of the three approved accrediting organizations,
18
none will schedule a survey for deemed status
without a letter from CMS approving their 855A form.
19
This form indicates an applicant’s intent to enroll
as a Medicare provider.
AHCA based this rule change on the assumption that Medicare certification is required, however;
AHCA notes that federal law is ambiguous on this point.
20
Effect of the Bill
HB 391 requires a home health agency that is providing attendant care nursing services or private duty
nursing services to enroll in the Florida Medicaid program as the attendant care nursing specialty type
or private duty nursing specialty type, or both, as applicable, in order to be reimbursed by AHCA for
such services provided to recipients under the program.
The bill provides that a home health agency that provides only private duty nursing services or
attendant care services, or both, is not required to meet the Medicare CoPs or any equivalent
accreditation requirements. Home health agencies providing private duty or attendant care nursing
services and skilled nursing or other therapeutic services would still be required to meet the Medicare
CoPs pursuant to AHCA rule, which would need to be updated upon the passage of this bill.
15
Agency for Health Care Administration, Private Duty Nursing Services Coverage Policy, Section 4.2, available at
https://ahca.myflorida.com/content/download/7036/file/59G-4-261_Private_Duty_Nursing_Services_Coverage_Policy.pdf (last visited
March 26, 2023).
16
Agency for Health Care Administration, Florida Medicaid Provider Enrollment Policy at pg. 48 (January 2022), available at
https://www.flrules.org/Gateway/reference.asp?No=Ref-13974 (last visited March 23, 2023).
17
Id.
18
Agency for Health Care Administration, Home Health Agencies Accrediting Organizations for Skilled Home Health Agencies,
available at https://ahca.myflorida.com/MCHQ/Health_Facility_Regulation/Lab_HomeServ/HHA/hha_accreditation.shtml (last visited
March 26, 2023).
19
U.S. Department of Health & Human Services, Medicare Enrollment Application, Institutional Providers, available at
https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/downloads/cms855a.pdf (last visited March 26, 2023).
20
Agency for Health Care Administration, Agency Analysis of 2023 HB 871 (March 25, 2023). STORAGE NAME: h0871a.HRS PAGE: 5
DATE: 3/27/2023
The bill also defines the terms “attendant care nursing services” and “private duty nursing services” to
mean “nursing treatment as defined in s. 464.003
21
, provided at a level of care which requires more
individualized and continuous care than can be provided through a home health visit for a Medicaid
recipient.” Attendant care nursing services is the treatment provided to Medicaid recipients 21 years of
age or older. Private duty nursing services is the same treatment provided to Medicaid recipients
younger than 21 years of age.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 409.905, F.S., relating to mandatory Medicaid services.
Section 2: Provides an effective date of July 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STAT EMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See fiscal comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
AHCA interprets the bill to require Florida Medicaid to cover the cost of providing attendant care
nursing services to adults, which would be a service expansion.
22
Since attendant care nursing is
currently offered only to those LTC recipients identified as requiring this service, it is difficult to
determine the exact expenditure amount. In FY 2021-22, there were 299 recipients getting attendant
care nursing at a cost of $15,621,986 or an average of $52,247.44 per recipient and 574 recipients
presently receiving home health services in FFS. The extent of the fiscal impact depends on how many
home health service recipients participate.
23
21
“Nursing treatment” means the establishment and implementation of a nursing regimen for the care and comfort of individuals, the
prevention of illness, and the education, restoration, and maintenance of health. S. 464.003(17), F.S.
22
Supra note 20.
23
Id. STORAGE NAME: h0871a.HRS PAGE: 6
DATE: 3/27/2023
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
AHCA has sufficient rule-making authority to implement the provisions of the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The bill may require revision to rectify the AHCA interpretation that it establishes a service expansion.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES