There's no place like home: how PPACA falls short in expanding home care services to the elderly.

AuthorVento, Nick
PositionPatient Protection and Affordable Care Act
  1. INTRODUCTION II. BACKGROUND A. What are Home Care Workers? B. Legal History of Home and Community-Based Services 1. Medicaid Section 1915(c) HCBS Waiver Program 2. Personal Care Services Optional State Plan Benefit 3. The Olmstead Decision 4. The Patient Protection and Affordable Care Act Enhancement of Home and Community Based-Services C. Medicaid Mandatory Nursing Facilities III. PPACA FALLS SHORT IN IMPROVING ACCESS TO HOME CARE SERVICES A. PPACA Fails to Provide Mandatory Universal Home Care Services 1. Additional HCBS Options Further Fragments Services 2. Optional Programs Leave Personal Care Service at Risk B. PPACA Fails to Eliminate State Strategies to Limit Enrollment 1. 1915(c) Waiver Program Enrollment Limitations 2. Personal Care Services Optional State Plan Benefit Enrollment Limitations C. PPACA Fails to Implement Universal Licensure and Regulation IV. PROPOSED RECOMMENDATIONS A. Create Single Mandatory Medicaid Program Offering Home and Community-Based Services B. Develop Universal Quality and Regulation Standard for Home Care Services 1. Establish Minimum Training Requirements 2. Establish Minimum Core Competencies That All Home Care Workers Must Obtain 3. Possibility of Third-Party Credentialing V. CONCLUSION I. INTRODUCTION

    Mary Jane Scanlon, a seventy-year old California woman who had been disabled much her of life, needed a live-in caregiver to continue living at home. (2) Unaware of the proper channels to find a qualified home caregiver, Mary Jane hired Diane Warrick through an ad posted on Craigslist. (3) Unfortunately, Mary Jane was oblivious to Diane's disturbingly extensive criminal and mental history. (4) In 1997, Diane tried to take a drug counselor hostage at Napa State Hospital in California, (5) shooting at sheriff's deputies during the incident. (6) Warrick was convicted of four counts of attempted murder of a peace officer, but was found not guilty by reason of insanity and committed to Patton State Hospital. (7) By 2002, a judge found that Warrick had "regained her sanity," and authorities released her to an outpatient program in Contra Costa County. (8) Nine years later, a Contra Costa County jury found Diane Warrick guilty of second-degree murder in the stabbing of Mary Jane Scanlon in her home. (9) At trial, Warrick testified that she had hallucinated when she stabbed Mary Jane, believing her abusive father was attacking her at the time. (10)

    The tragic death of Mary Jane Scanlon reveals a disturbing problem in obtaining contemporary long-term care: with a swelling senior citizen population, (11) skyrocketing costs of institutional care, (12) and a strong consumer preference for home and community-based services (HCBS), (13) Americans lack access to reliable home care services at a reasonable cost. So long as Medicaid continues to provide these services exclusively through optional state waiver and demonstration programs, (14) this problem will persist. (15)

    Medicaid is the primary payer for long-term services and supports (LTSS). (16) While Medicaid allows for states to choose whether or not they want to offer home care services, (17) it mandates that each state provide nursing facility services to their elderly population. (18) This has led to a well-known institutional bias that steers those with long-term care needs into nursing homes regardless of whether or not the individual would prefer to receive care at home. (19) With institutional care receiving most of the Medicaid funding and states varying greatly in the types of home care services they choose to offer, (20) home care options for the elderly nationwide can be described as inconsistent at best. (21)

    On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (PPACA). (22) In an effort to rebalance states' spending on LTSS towards home care, PPACA created four new options under Medicaid with which states could provide home care services to their citizens. (23) While, PPACA's creation of these four optional Medicaid HCBS programs allows states more flexibility and the capability to provide enhanced home care services to its citizens, it falls short of completely addressing the existing institutional bias in Medicaid by failing to create a mandatory Medicaid state service plan for home care services. Part II describes home care workers, provides a legislative history of home care services, and outlines how Medicaid provides nursing facility care. Part III analyzes the shortcomings of PPACA's plan to improve access and delivery of home care services. Part IV proposes recommendations to better provide the elderly with reliable and affordable home care services.

  2. BACKGROUND

    1. What are Home Care Workers?

      Home care workers provide hands-on care, supervision, and emotional support for the elderly in the United States. (24) Home care workers administer essential support and services that enable older adults, who otherwise could not live on their own, to reside safely in their homes and participate in their communities. (25) Home care workers' tasks primarily consist of assisting clients with Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs). (26) The U.S. Department of Health & Human Services defines ADLs as primarily personal care tasks, such as bathing, dressing, feeding, and toileting. (27) IADLs include household chores such as shopping, preparing meals, housework, and even handling money. (28)

      Home care workers generally receive less formalized training than other members of the direct-care workforce. (29) This can be attributed mainly to three general characteristics. (30) First, unlike medical services provided by nursing homes and home health agencies, Medicare does not reimburse home care services. (31) Therefore, home care providers are not subject to federal Medicare requirements to participate in the program. (32) Second, although Medicaid can pay for home care, (33) it does not provide federal oversight in areas, such as training and licensure. (34) Instead, Medicaid leaves the decision of whether or not to require formalized training of home care workers up to the states, and only a few states exercise this authority. (35) Third, home care workers are "more likely than other members of the direct-care workforce to work for employers and/or in settings that are not licensed by the state." (36) Combined, these factors contribute greatly to the fact that home care workers today receive less oversight than other direct-care workers in areas such as orientation, in-service training, and on-site supervision, exacerbating the growing concern that many home care workers lack the initial training and the ongoing skills assessment and evaluation necessary to provide quality home care. (37)

      Over the past ten years, the United States has seen a massive growth in the home care workforce to match the growing senior population and their growing preference to receive nursing care at home. The Bureau of Labor Statistics (BLS) expects the direct care workforce to add an additional 1.6 million new positions from 2010 to 2020. (38) This expected growth in workforce will make direct-care workers the largest occupational group in the United States by the year 2020, outpacing professions such as retail salespersons, grade school teachers, and even law enforcement. (39)

      Home care workers are a subcategory of and a major contributor to the rapidly growing direct-care workforce. (40) From 2010 to 2020, the BLS expects home care workers to be the fastest growing occupation in the United States, with a growth rate of 70.5%. (41) The BLS predicts that home care workers will add the fourth most jobs in that time, adding approximately 607,000 new jobs. (42) Additionally, the direct-care workforce continues to shift from facilities to home and community-based settings. (43) As the demand for home care workers clearly continues to grow, the pressure continues to mount for policymakers to ensure that the elderly are able to obtain high quality workers at a reasonable cost. (44)

    2. Legal History of Home and Community-Based Services

      Medicaid primarily acts as joint federal and state health financing program for low-income individuals. (45) It also remains the most significant government program offering home care assistance in the United States. (46) The two predominant means through which Medicaid participants receive home care services are through the Medicaid Title XIX Personal Care Services Optional State Plan Benefit (PCS) and the Medicaid 1915(c) Home and Community-Based Services ("HCBS") waiver program. (47) States may cover home care services through the waiver program, the personal care option, or both. (48) Since the Supreme Court's decision in Olmstead v. L.C., both Congress and the states have been looking for ways to increase home and community-based services to comply with the decision. (49) This resulted in the creation and enhancement of several new options for states to offer home and community-based services to Medicaid beneficiaries with the passage of PPACA. (50)

      1. Medicaid Section 1915(c) HCBS Waiver Program

        When Congress passed Section 2176 of the Omnibus Budget Reconciliation Act of 1981, it established the Medicaid 1915(c) HCBS waiver program through Section 1915(c) of the Social Security Act. (51) Section 1915(c) authorized the Health Care Financing Administration to waive certain Medicaid statutory requirements to enable states to cover home and community-based services so that individuals can avoid institutional nursing home care. (52) Congress initially limited the program to only cover home and community-based services for individuals who would otherwise have required the level of care provided in a skilled nursing facility, intermediate care facility, or intermediate care facility for the mentally retarded. (53) Congress has since expanded eligibility over time to include ventilator dependent individuals who...

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