N.J. woman, 81, joins lawsuit to force Medicare to pay for more home care

From bed in her East Greenwich Township house, Katherine Vaczi can see through patio doors into the backyard flower and vegetable garden she has been tending for more than 40 years. The sight inspires the 81-year-old to get up and start her day.

“There’s always something I need to do,” Vaczi, a retired teacher, said on a recent afternoon while showing her Gloucester County property to a visitor and pointing out where she had just cleared a bed of celosia after the seeds had dropped.

But these days Vaczi — who has lived independently for decades despite being paralyzed from the waist down in a car accident when she was 23 — needs help from a home health aide to get out of bed. And she’s convinced Medicare has an obligation to pay for it so she can remain in the house she had custom-built in 1980.

“Once I’m in my chair, I’m a different person,” Vaczi said, referring to her motorized wheelchair.

Vaczi’s predicament highlights the public-policy tension between the ideal of aging in place and getting care at home, where it costs the government less, and the reality that it’s easier to get Medicare to pay for more expensive care in hospitals and nursing homes. In New Jersey, a private room in a nursing home costs $12,151 a month compared to $5,710 for a home health aide, according to insurer Genworth’s latest cost-of-care survey.

Medicare hasn’t paid for Vaczi’s home care with any consistency except when she was so ill two years ago that she qualified for Medicare’s hospice program, which paid for aides to help her get out of bed, bathe, and get dressed five days a week. That care helped her “graduate” from hospice in August 2021, as her daughter Kathy Shawaryn put it.

Now, Vaczi, still unable to access home care reimbursement under Medicare, is one of three individual plaintiffs in a lawsuit filed Oct. 6 in federal district court of the District of Columbia. The class action against Xavier Becerra, the secretary of Health and Human Services, alleges that he and his predecessors have failed to properly administer Medicare’s home health benefit.

There’s a widespread “misconception that Medicare is only for short-term home care,” said Alice Bers, litigation director at the Center for Medicare Advocacy, a nonprofit with offices in Washington, D.C., and Connecticut that filed the lawsuit.

But Medicare law says beneficiaries are eligible for home health services paid for by Medicare if they are homebound, require a skilled service, and have a doctor’s order for the services, with no cap on how long that care lasts, according to the 58-page complaint. In Vaczi’s case, a chronic stage-four pressure wound requires skilled nursing care, the lawsuit says.

“It’s a benefit that could help a lot more people if it were working right,” said Bers.

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The lawsuit says that nearly 6 million Medicare beneficiaries living independently have a disability that makes it hard for them to take care of themselves, but only 3.3 million Medicare beneficiaries used home health care in 2019, and mostly short term. About 64 million people are enrolled in Medicare.

A spokesperson for the Centers for Medicare & Medicaid Services said the agency does not comment on pending litigation.

Rachel Werner, a physician and the executive director of the Leonard Davis Institute of Health Economics at the University of Pennsylvania, said Medicare has been designing payments for home care companies that emphasize quality — which is measured in terms of improvement in the patient’s functioning.

“But clearly the benefit is not structured that way,” said Werner, whose research specialties include Medicare and long-term care. “You don’t need to have improvement to qualify for the benefit. There’s definitely a tension there.”

A potential unintended consequence of the incentives is that “home care agencies are going to avoid patients who they think are not going to improve because it’s going to hurt their quality ratings,” Werner said.

Getting Medicare to change those incentives is among the goals of the lawsuit, said Bers, whose organization was behind a landmark legal settlement in 2013 under which Medicare officials agreed that beneficiaries qualify for physical therapy and other skilled services if they are needed to maintain function or slow a decline. Lack of progress had been used for years as a way to stop therapy, allowing seniors’ conditions to sharply deteriorate.

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In this case, the Center for Medicare Advocacy also wants Medicare “to stop discouraging care for people with long-term disabilities” and ensure “that home health agencies and the contractors that Medicare uses to make coverage decisions know that coverage is available under the law for up to 28 to 35 hours a week of aide services for as long as beneficiaries qualify,” Bers said.

Bers said accessing home care under Medicare was a problem long before COVID-19 led to severe worker shortages.

Since being discharged from hospice in August 2021, Vaczi, even with her daughter’s help, has been unable to line up consistent home care. She landed in the hospital in February 2022 because of cellulitis, followed by a nursing home stay leading to problems that sent her back to the hospital 11 days later.

Vaczi returned home in April, but her daughter was unable to find a Medicare-certified agency to care for her mother. Vaczi, whose health problems have included breast cancer, heart problems, and complicated urinary tract infections, has been paying out-of-pocket for help — a significant financial strain.

Shawaryn said it is exasperating that her mother paid taxes to support Medicare during her 25-year teaching career at South Harrison Elementary School, but now struggles to get the service she needs.

“There’s nothing like paying for something and not being able to get it,” Shawaryn said, especially given the foresight that Vaczi had in planning her house as a place she could remain as she aged.

Shawaryn likes to call her mother’s house the equivalent of a “a five-star nursing home.” The large bathroom next to Vaczi’s bedroom has a curbless shower.

Three years ago, a former student helped Vaczi redesign her kitchen, eliminating cabinets with doors she often got caught on in favor of drawers that make the kitchen easier to use while she tries new recipes.

In her backyard, Vaczi lamented that the garden doesn’t look as nice as she would like, but she also spoke proudly of how she constantly tweaks her technique for collecting leaves out of her garden (she pays someone to take care of the yard).

“I’m so tickled when I discover new things,” she said.