C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER B—MEDICARE PROGRAM › PART 409—HOSPITAL INSURANCE BENEFITS › Subpart E—Home Health Services Under Hospital Insurance

42 C.F.R. § 409.42

Beneficiary qualifications for coverage of services

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To qualify for Medicare coverage of home health services, a beneficiary must meet each of the following requirements:

(a) Confined to the home. The beneficiary must be confined to the home or in an institution that is not a hospital, SNF or nursing facility as defined in section 1861(e)(1), 1819(a)(1) or 1919(a)(1) of the Act, respectively.

(b) Under the care of a physician or allowed practitioner, as defined at § 484.2 of this chapter. The beneficiary must be under the care of a physician or allowed practitioner, as defined at § 484.2 of this chapter who establishes the plan of care. A doctor of podiatric medicine may establish a plan of care only if that is consistent with the functions he or she is authorized to perform under State law.

(c) In need of skilled services. The beneficiary must need at least one of the following skilled services as certified by a physician or allowed practitioner, as defined at § 484.2 of this chapter in accordance with the certification and recertification requirements for home health services under § 424.22 of this chapter.

(1) Intermittent skilled nursing services that meet the criteria for skilled services and the need for skilled services found in § 409.32. (Also see § 409.33(a) and (b) for a description of examples of skilled nursing and rehabilitation services.) These criteria are subject to the following limitations in the home health setting:

(i) In the home health setting, management and evaluation of a patient care plan is considered a reasonable and necessary skilled service when underlying conditions or complications are such that only a registered nurse can ensure that essential non-skilled care is achieving its purpose. To be considered a skilled service, the complexity of the necessary unskilled services that are a necessary part of the medical treatment must require the involvement of licensed nurses to promote the patient's recovery and medical safety in view of the overall condition. Where nursing visits are not needed to observe and assess the effects of the non-skilled services being provided to treat the illness or injury, skilled nursing care would not be considered reasonable and necessary, and the management and evaluation of the care plan would not be considered a skilled service. In some cases, the condition of the patient may cause a service that would originally be considered unskilled to be considered a skilled nursing service. This would occur when the patient's underlying condition or complication requires that only a registered nurse can ensure that essential non-skilled care is achieving its purpose. The registered nurse is ensuring that service is safely and effectively performed. However, a service is not considered a skilled nursing service merely because it is performed by or under the supervision of a licensed nurse. Where a service can be safely and effectively performed (or self administered) by non-licensed staff without the direct supervision of a nurse, the service cannot be regarded as a skilled service even if a nurse actually provides the service.

(ii) In the home health setting, skilled education services are no longer needed if it becomes apparent, after a reasonable period of time, that the patient, family, or caregiver could not or would not be trained. Further teaching and training would cease to be reasonable and necessary in this case, and would cease to be considered a skilled service. Notwithstanding that the teaching or training was unsuccessful, the services for teaching and training would be considered to be reasonable and necessary prior to the point that it became apparent that the teaching or training was unsuccessful, as long as such services were appropriate to the patient's illness, functional loss, or injury.

(2) Physical therapy services that meet the requirements of § 409.44(c).

(3) Speech-language pathology services that meet the requirements of § 409.44(c).

(4) Occupational therapy services in the current and subsequent certification periods (subsequent adjacent episodes) that meet the requirements of § 409.44(c) initially qualify for home health coverage as a dependent service as defined in § 409.45(d) if the beneficiary's eligibility for home health services has been established by virtue of a prior need for intermittent skilled nursing care, speech-language pathology services, or physical therapy in the current or prior certification period. Subsequent to an initial covered occupational therapy service, continuing occupational therapy services which meet the requirements of § 409.44(c) are considered to be qualifying services.

(d) Under a plan of care. The beneficiary must be under a plan of care that meets the requirements for plans of care specified in § 409.43.

(e) By whom the services must be furnished. The home health services must be furnished by, or under arrangements made by, a participating HHA.

[59 FR 65494, Dec. 20, 1994; 60 FR 39122, Aug. 1, 1995, as amended at 74 FR 58133, Nov. 10, 2009; 76 FR 68606, Nov. 4, 2011; 85 FR 27619, May 8, 2020]
Notes of Decisions
Cited in 12 cases, 1987–2020 · leading case: Visiting Nurse Ass'n of Brooklyn v. Thompson, 378 F. Supp. 2d 75 (E.D.N.Y 2004).
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Visiting Nurse Ass'n of Brooklyn v. Thompson, 378 F. Supp. 2d 75 (E.D.N.Y 2004). · cites it 3× “42 C.F.R. §§ 409.42 , 409.45(b)(3). Under Part A of the Medicare provisions, YNAB and VNAHCS have entered into provider agreements with the Secretary that authorize them to provide skilled nursing.”
United States v. Galatis, 849 F.3d 455 (1st Cir. 2017). “” 42 C.F.R. § 409.42 . In order to prove a beneficiary’s eligibility for Medicare payment for home health services, providers must submit two forms to the U.”
Palm Valley Health Care, Inc. v. Alex Azar, II, Se, 947 F.3d 321 (5th Cir. 2020). “42 C.F.R. § 409.42 . Based on interviews of beneficiaries and their friends and families, as well as a review of medical records, the contractor concluded that the 29 beneficiaries either were not homebound or did not need skilled care.”
Healey v. Thompson, 186 F. Supp. 2d 105 (D. Conn. 2001). “§ 1395x(m); see also 42 C.F.R. § 409.42 (listing the necessary qualifications for eligibility for home health services).”
Livinrite, Inc. v. Azar, 386 F. Supp. 3d 644 (E.D. Va. 2019). “§§ 1395f(a)(2)(C), 1395y(a)(1)(A) ; 42 C.F.R. § 409.42 . A skilled service is one that is "so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel.”
Exec. Dir. of the Off. of Vermont Health Access v. Sebelius, 698 F. Supp. 2d 436 (D. Vt. 2010). · cites it 2× “QVHA argued Carey qualified for coverage and that the Secretary’s denial of coverage was not supported by substantial evidence and violated Medicare laws and regulations.”
Bergeron v. Shalala, 855 F. Supp. 665 (D. Vt. 1994). “42 C.F.R. § 409.42 (b). It is undisputed in this case that Bergeron was homebound and under the care and treatment of a physician during the relevant time periods.”
Smith on Behalf of McDonald v. Shalala, 855 F. Supp. 658 (D. Vt. 1994). “42 C.F.R. § 409.42 (b). It is undisputed in this case that plaintiff was homebound and under the care and treatment of a physician during the relevant time periods.”
Russell v. Sebelius, 686 F. Supp. 2d 386 (D. Vt. 2010). “42 C.F.R. §§ 409.42 (a)-(d). In relevant part, the regulations state as follows: To qualify for Medicare coverage of home health services, a beneficiary must meet each of the following requirements: (a) Confined to the home.”
Mastellone v. Sec'y of Health & Human Servs., 670 F. Supp. 80 (E.D.N.Y 1987). · cites it 5× “Plaintiff also argues that whether or not 42 C.F.R. § 409.42 (g) is consistent with the intent of Congress, its application in her case is inequitable and must be avoided through a judicially imposed retroactive arrangement between VHHS and those whom plaintiff retained.”
(PS) Storman v. US Off. of the Sec'y of Health & Human Servs. (E.D. Cal. 2019). “AR 23, 6; see 42 C.F.R. § 409.42 (b), (d); see 42 U.S.C.”
United States of Am. v. United Healthcare Ins. Co. (N.D. Ill. 2018). “See 42 C.F.R. § 409.42 (a)-(c) (to qualify for home health services, the beneficiary must be confined to the home, be under the care of a physician, and need “skilled services” including skilled nursing services, physical therapy services, speech- language pathology, and…”
— 42 C.F.R. § 409.42(g) — 1 case
Mastellone v. Sec'y of Health & Human Servs., 670 F. Supp. 80 (E.D.N.Y 1987). “Plaintiff also argues that whether or not 42 C.F.R. § 409.42 (g) is consistent with the intent of Congress, its application in her case is inequitable and must be avoided through a judicially imposed retroactive arrangement between VHHS and those whom plaintiff retained.”
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