Medicare only covers home health care if, among other requirements, the beneficiary is homebound. As of November 19, 2013, the Centers for Medicare & Medicaid Services (CMS) will require new criteria for purposes of meeting the homebound requirement. These new requirements will leave many Medicare beneficiaries without access to the medically reasonable and necessary home care coverage to which they are legally entitled.
The Medicare statue indicates that a beneficiary is homebound if the individual is confined to home because of:
… a condition, due to an illness or injury, that restricts the ability of the individual to leave his or her home except with the assistance of another individual or the aid of a supportive device (such as crutches, a cane, a wheelchair, or a walker), or if the individual has a condition such that leaving his or her home is medically contraindicated. While an individual does not have to be bedridden to be considered "confined to his home", the condition of the individual should be such that there exists a normal inability to leave home and that leaving home requires a considerable and taxing effort by the individual. Any absence of an individual from the home attributable to the need to receive healthcare treatment, including regular absences for the purpose of participating in therapeutic, psychosocial, or medical treatment in an adult day-care program that is licensed or certified by a State, or accredited, to furnish adult day-care services in the State shall not be disqualify an individual from being considered to be "confined to his home". Any other absence of an individual from the home shall not so disqualify an individual if the absence is of infrequent or of relatively short duration. For purposes of the preceding sentence, any absence for the purpose of attending a religious service shall be deemed to be an absence of infrequent or short duration." [Emphasis added.]
CMS currently effectively captures the intent of the Statute in its policy manual, stating:
An individual does not have to be bedridden to be considered confined to the home. However, the condition of these patients should be such that there exists a normal inability to leave home and, consequently, leaving home would require a considerable and taxing effort.
The current policy then quotes the Statute, followed by:
It is expected that in most instances, absences from the home that occur will be for the purpose of receiving health care treatment. However, occasional absences from the home for nonmedical purposes, e.g., an occasional trip to the barber, a walk around the block or a drive, attendance at a family reunion, funeral, graduation, or other infrequent or unique event would not necessitate a finding that the patient is not homebound if the absences are undertaken on an infrequent basis or are of relatively short duration and do not indicate that the patient has the capacity to obtain health care provided outside rather than in the home.
The current policy goes on to state:
Generally speaking, a patient will be considered to be homebound if they have a condition due to an illness or injury that restricts their ability to leave their place of residence except with the aid of: supportive devices such as crutches, canes, wheelchairs, and walkers; the use of special transportation; or the assistance of another person; or if leaving home is medically contraindicated.
In other words, the current policy clarifies that a person will be considered homebound if her ability to leave home is restricted – and the policy provides a number of ways in which to demonstrate this is the case. If a beneficiary requires the aid of supportive devices, the assistance of another person, or if leaving home is medically contraindicated, it establishes the requisite restriction on the ability to leave home even without a taxing effort. Under the Statute and current CMS policy, there is no specific requirement that the person must require the assistance of another, require an assistive device, or special transportation to leave home or that it is medically contraindicated for the person to leave home. Indeed the statute states that the individual's condition "should be such that there exists a normal inability to leave home and that leaving home requires a considerable and taxing effort…"
CMS' New Homebound Policy
As of November 19, 2013, however, CMS will require Medicare beneficiaries to meet two sets of criteria before their home health agency even considers whether they have an ordinary inability to leave home. The new policy states:
For purposes of the statute, an individual shall be considered "confined to the home" (homebound) if the following two criteria are met:
The patient must either:
- Because of illness or injury, need the aid of supportive devices such as crutches, canes, wheelchairs, and walkers; the use of special transportation; or the assistance of another person in order to leave their place of residence
- Have a condition such that leaving his or her home is medically contraindicated.
If the patient meets one of the criteria in Criteria-One, then the patient must ALSO meet two additional requirements defined in Criteria-Two below.
- There must exist a normal inability to leave home;
- Leaving home must require a considerable and taxing effort. [Emphasis added.]
Two years ago, on November 4, 2011, CMS published this new proposed policy as "Clarification to Benefit Policy Manual Language on 'Confined to the Home' Definition." Unfortunately, the proposed policy change was included with unrelated materials and went unnoticed by beneficiary and consumer advocates until November 1, 2013. The 2011 explanation for the policy change was stated as:
To address the recommended changes of the Office of Inspector General (OIG) to the home health benefit policy manual, CMS proposed to clarify its "confined to the home" definition to more accurately reflect the definition as articulated in the Act…These changes present the requirements first and more closely align our policy manual with the Act to prevent confusion and promote a clearer enforcement of the statute and more definitive guidance to HHAs for compliance…
Regrettably, CMS did not indicate to which OIG report it is responding. Nonetheless, in a more recent report the OIG defined homebound more clearly than, and mostly consistent with, the Statute and the current CMS policy manual:
Medicare considers beneficiaries homebound, if, because of illness or injury, they have conditions that restrict their ability to leave their places of residence. Homebound beneficiaries do not have to be bedridden, but should be able to leave their residences only infrequently with "considerable and taxing effort" for short durations or for health care treatment.
This March 2012 OIG statement is far more akin to the relatively flexible "confined to home" standards set out in the Medicare Act. Similarly, the current policy is closer to the statute than the proposed policy. Where the statute and current policy indicate what should usually be present to meet the homebound definition, the proposed policy states what must be present. Further, the proposed policy deletes the introductory language of the current policy, which includes a sense that an individual's circumstances as a whole should be looked at to determine whether he/she is homebound.
The intent of the Medicare statute is to provide health care in the home to beneficiaries who lack an ordinary ability to leave home. Beneficiaries who need the assistance of another or an assistive device or who require special transportation to leave home or people who should not leave home because it is medically contraindicated are examples of people who lack an ordinary ability to leave home, and thus need the health services to come to them. However, they are not the only beneficiaries who are homebound for purposes of Medicare coverage of home health care.
For example, an individual with chronic obstructive pulmonary disease may not have an assistive device, may not need another person to help her leave her home, and may not need specialized transportation. Nonetheless, she may still have an ordinary inability to leave home for multiple reasons including shortness of breath, dizziness upon exertion, or inability to climb stairs. Under the Statute and current CMS policy, this individual would be eligible for home health coverage, but under CMS's new definition of homebound, she and many like her, will not be considered homebound – and will lose access to Medicare coverage for home health care. This is an illegal and unacceptable result.
CMS should not implement its new homebound policy. It is inconsistent with, and more restrictive than, the Medicare law. It will undermine the intent of the Medicare statute. Furthermore, it will result in many older and disabled Americans losing home health care – the very care that allows them to live at home and to stay out of costly institutions.
 42 U.S.C. § 1395n(a)(2), as amended by the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA), Pub. L. No. 106-554(Dec. 21, 2000).
 Medicare Benefit Policy Manual, Pub. 100-02, Ch. 7, § 30.1.1
 Rev, 172, Issued: 10-18-13, Effective: 11-19-13, Implementation: 11-19-13, Not yet available on the online version of the Medicare Benefit Policy Manual, Pub. 100-02, Ch. 7, § 30.1.1.
 76 Fed. Reg. 68526, 68599 (Nov. 4, 2011).
 Office of Inspector General (OIG), Documentation of Coverage Requirements for Medicare Home Health Claims, OEI-01-08-00390 (March 2012).