• Scott R. Severns, Severns Associates, 41 E.. Washington St., #300, Indianapolis, IN 46204
• H. Kennard Bennett

• Complaint, with Exhibits, filed August 25, 2003 (PDF Format)
• Court Ordered Injunction, issued September 30, 2003 (PDF Format)

Steve Schurbrock has lived with MS for nearly 30 years. Although wheelchair-bound and increasingly dependent on others for much of his daily routine, Mr. Schurbrock has been able to stay home with the help of a home health aide two hours per day and bi-weekly nurse visits for the past 12 years. Without that help, he would have to leave his wife and teenage children and be placed in a nursing home.

Intrepid Home Health Services issued 5-day notice of discharge shortly after his doctor ordered a temporary increase in his services while his wife recuperated from major surgery. Schurbrock alleged that the discharge was financially-motivated and violated his rights under Medicare. U.S. District Court Judge Young first issued a Temporary Restraining Order, then held a hearing before issuing a Preliminary Injunction. The injunction stopped Intrepid from pulling out and required that the agency deliver the extra care his doctor ordered.

The home health agency contends that its action was taken because representatives of the Medicare Intermediary and a surveyor from the State Department of Health suggested that Schurbrock was not “homebound,” a requirement for Medicare coverage, after the agency reported to officials that Schurbrock had been out of the home. Schurbrock has heard that before.

Under Medicare coverage standards, a patient is “homebound” if it requires a taxing effort to leave the home and outings are relatively infrequent and relatively short duration. This rule has caused many problems in recent years, especially for people with long-term disabilities like Schurbrock, whose family and friends make heroic efforts to help them lead a more normal life. Officials of the Bush Administration have announced efforts to prevent application of this rule to imprison Medicare beneficiaries in their homes. New instructions were issued.

In 1998, Schurbrock accompanied his Norwegian-born wife to her homeland for 5 weeks. That trip threw his Medicare status into jeopardy until an Administrative Law Judge reviewed the extensive preparations and effort required to make that trip possible. The Judge ruled that Schurbrock met Medicare’s homebound requirement in 2001.

Although his condition has further limited his mobility since that time, Schurbrock still occasionally get outs to one of his children’s soccer games or around his neighborhood. A group of his classmates from Centerville High School have rallied around him and arranged for him to join them on class outings, including a four-day trip to Las Vegas when one member received special training and sponsored a home health aide to accompany him. His home health agency used the outings as the basis the discharge him.

When requests for a Medicare determination of his homebound status were made through official channels, Medicare agreed that Schurbrock continued to meet the “homebound” requirement. Schurbrock believes that the real reason that the agency sought to terminate him was that his case was unprofitable.

The Medicare home health benefit is limited to part-time or intermittent care, typically a maximum of 28 hours per week. With this limited benefit, however, many are able to avoid more costly institutions and remain at home with family.

In 1997, Congress passed the Balanced Budget Act (“BBA”), changing Medicare’s method of payment to home health agencies. The changes resulted in fixed payments to an agency for 60-day period of care of a particular beneficiary. The new payment method made many short-term patients highly profitable and long-term patients much less so. Although Medicare beneficiaries’ retained all of the previous rights to coverage under Medicare law, people with long-term needs, like Schurbrock, found that their home health agencies no longer wanted them. Without a provider willing to accept Medicare’s payments, the Medicare beneficiary’s right to coverage is useless.

Medicare officials who developed the payment system maintain that the system is based on “averages” and that home health agencies will still achieve an overall profit if they have a mix of patient types. However, safeguards against discrimination against less-profitable, long-term patients are virtually non-existent, unless the patient files a lawsuit.

Schurbrock and his Severns & Bennett team of lawyers and paralegals are determined to uphold his right to this crucial Medicare benefit. Without it, Schurbrock and thousands of Medicare beneficiaries who receive a limited amount of home health service to stay independent, will not be able to avoid an even more costly nursing home.