The 21st Century Cures Act (Cures Act) required states to adopt electronic visit verification (EVV) systems for Medicaid-covered personal care services (PCS) by January 1, 2020 and for home health care services (HHCS) by January 1, 2023. According to the Centers for Medicare and Medicaid Services (CMS), the EVV requirement was imposed “in response to longstanding fraud, waste and abuse concerns associated with Medicaid personal care services.” And yet, in November 2024, New York’s Comptroller reported that New York State had paid $14.5 billion for Medicaid-funded PCS without the required verification that the services occurred.[1] This suggests that increased oversight – and the partner of increased oversight, i.e., enforcement – is coming.
EVV systems must be capable of verifying, with respect to PCS or HHCS, the following:
- The type of service performed;
- The individual receiving the service;
- The date of the service;
- The location of service delivery;
- The individual providing the service; and
- The time the service begins and ends.
Under the Cures Act, states failing to implement EVV were subject to incremental reductions in their Federal Medical Assistance Percentage of up to 1 percent. Although EVV was implemented in New York State as required by statute, the Comptroller’s audit report[2] found that out of more than $31 billion paid by Medicaid during a 26-month audit period for personal care and home health care services (including medical care and assistance with housekeeping, meals, bathing and toileting):
- $14.5 billion was paid for 82 million personal care services without a matching EVV record.
- $97.6 million was paid for more than 400,000 home health care claims without a matching EVV record.
- $11.6 million was paid for visits lasting under 8 minutes and too short to be billable.
- $9.7 million was paid for home services provided when the patient was hospitalized and home visits should have been suspended.
The audit report blamed a lack of oversight and monitoring of EVV records for these findings and recommended that the New York Department of Health (DOH) create an EVV compliance program to deny improper claims and recoup overpayments. Significantly, the audit report noted that there “is a risk that the integrity of the EVV records is compromised when submitters can manually adjust the records before submitting them without DOH’s knowledge or providing a reason.” DOH stated that it planned to improve oversight and increase provider compliance with EVV.[3]
The federal government is also examining EVV compliance. CMS is in the process of evaluating the use of electronic visit verification data for PCS to “assess the availability and completeness of EVV data and examine how State Medicaid agencies and others use [the] data for program integrity purposes.” The CMS report is expected in 2026.
All this means that HHCS and PCS providers should expect increased scrutiny of their EVV submissions in search of overpayments. Any such overpayments can lead, not just to repayment demands, but also potential liability under the federal and state False Claims Acts, which can lead to treble damages and other civil penalties.
HHCS and PCS providers are urged to audit their EVV records to ensure compliance, both historically and on a prospective basis. This task can be performed with the assistance of outside counsel and under attorney-client privilege. The audit findings can then inform an appropriate compliance response by your organization.
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[1] See https://www.osc.ny.gov/press/releases/2024/11/dinapoli-state-paid-145-billion-medicaid-home-care-services-lacked-verification
[2] See https://www.osc.ny.gov/state-agencies/audits/2024/11/13/medicaid-program-provider-compliance-electronic-visit-verification-program and https://www.osc.ny.gov/files/state-agencies/audits/pdf/sga-2025-22s31.pdf
[3] https://www.osc.ny.gov/files/state-agencies/audits/pdf/sga-2025-22s31-response.pdf