NAHC Plans Lawsuit on Medicare Face-to-Face Rule
April 1, 2014 04:16 PM
Val J. Halamandaris, president of the National Association for Home Care & Hospice, announced at the recent March on Washington and Annual Policy Conference that the NAHC Board of Directors approved moving forward with the filing of a lawsuit to challenge Medicare's implementation of the Affordable Care Act requirement that home health patients have a face-to-face encounter with a physician to qualify for coverage. It is expected that the lawsuit will be filed in mid-April.
Since CMS issued its rule and guidance on the face-to-face encounter requirements, home health agencies have experienced a significant increase in retroactive claim denials. Statistics released by Medicare Administrative Contractors indicate that over 80 percent of these claim denials relate to the face-to-face requirements. Specifically, these denials are due to allegations of insufficient physician narratives related to a patient's home bound status and need for skilled care."
"When the vast majority of claim denials involve documentation insufficiency, it should be apparent that something is seriously wrong with Medicare's documentation guidance, " noted Bill Dombi, NAHC's Vice President for Law. "Home health agencies are desperately trying to submit claims with compliant documentation. They have no interest in suffering the losses triggered by retroactive claim denials," he noted.
The lawsuit is expected to present three legal causes of action. First, the lawsuit will argue that Medicare overstepped its authority under the ACA by requiring the physician narratives on home bound and skilled care need. The ACA provides that a physician must only document that the encounter occurred. Second, the lawsuit will argue that to the extent that CMS had the power to require the physician narratives, it also has an obligation to establish standards for compliance that can be adequately understood and applied by the physicians and home health agencies. The high volume of documentation-related claim denials is evidence that CMS has failed in that regard. The third claim is that Medicare cannot deny a claim based on an allegation of insufficient documentation unless it reviews the entire record. Any alleged deficiency in the required brief narrative from the physician should lead to a comprehensive review of the entire patient record to determine if the patient meets home bound and skilled care requirements.
Dombi notes that Medicare contractors have found that patient records show that the home bound and skilled care requirements have been met, but that some insufficiency in the physician narrative justifies a full claim denial.
It is expected that the lawsuit will be filed in federal District Court in Washington, D.C.