Home health care regulation. Is it good for the patient

Home health care in the United States at the inception of the new millennium is a highly regulated enterprise. At the heart of the extensive command and control regulatory web that federal and state governments have woven in this sphere lies the widespread public presumption that the quality of care and quality of life for home health care patients are likely to vary in direct proportion to the degree of direct government involvement in, and oversight regarding, the services provided to those patients. The accuracy of that rather presumptuous presumption, however, has not been systematically evaluated in light of the substantial actual experience that has by now accumulated in the regulated home health arena. After enumerating the major current sources of home health care regulation, this article suggests some reasons why a comprehensive empirical evaluation of the regulation's impact is significantly overdue, proposes an analytic model for guiding such an inquiry, surmises about how we ought to interpret the limited work done thus far concerning regulatory effectiveness, and posits some directions for further study and action in the future. THE REGULATORY ENVIRONMENT The regulation of American home health agencies (HHAs) and their staffs has been multifaceted for a number of years (Johnson, 1989). At present, over 41 American jurisdictions require-purportedly for the protection of the public's health-the licensure of HHAs by the individual state as the basic permission of government to conduct home health care activities. In addition to those statutes that license the HHA directly, every state has enacted legislation under its inherent police power to promote the public welfare regulating the practice and character of individual health care professionals (e.g., physicians, nurses, psychologists, social workers, and various types of therapists) who may be employed directly by, or work under a contractual relationship with, HHAs. On the federal level, the Health Care Financing Administration (HCFA) of the Department of Health and Human Services (DHHS) sets and enforces (through contracted state surveys) Conditions of Participation (COPs) for HHAs that wish to participate in the Medicare health care financing program.1 As of January 1999, there were 9,263 Medicare-certified HHAs. Federal regulations also specify that HHAs participating in the Medicaid program must satisfy Medicare COPs;2 in 1997, home health care accounted for 24% of total Medicaid long-term-care spending. In addition, federally created Peer Review Organizations (PROs) are mandated to review home health care settings for compliance with "professionally recognized standards of care." In its 1999 "Legislative Blueprint for Action,"3 the Home Care Aide Association of America has called on Congress to enact even more specific requirements pertaining to the quality management of home health care. Among other things, the Association recommends that federal law: L75. Require federally funded criminal background checks and establish a national registry system L77. Require contractors of care in the home to ensure supervision and support of paraprofessionals L78. Enhance consumer protections for home care recipients L79. Develop quality of care standards for consumerdirected care L82. Establish federal Medicaid standards for personal care services. Besides prescriptive regulation aimed at setting and enforcing patient care standards, complemented by the omnipresent threat of private tort litigation initiated by or on behalf of individual injured patients seeking financial recovery for alleged injury directly caused by professional malpractice on the part of the defendant(s) (Brake, 1997; Rozovsky & Rozovsky, 1993), a panoply of federal and state laws regulates most of the myriad business aspects of home health care delivery (e.g., antifraud and abuse provisions [Reese & Hafkenschiel, 1998] and antitrust prohibitions) in an attempt to control the amount and propriety of financial expenditures that- at least prior to enactment of the Balanced Budget Act (BBA) of 1997-had been spiraling rapidly upward (Davis, 1998). …