Face-to-Face Rule Advocacy: An Update
May 7, 2014 08:31 AM
Industry concerns with the Medicare home health face-to-face physician encounter requirements continue to mount as Medicare’s various contractors expand their respective post-payment reviews of claims. In late March, the NAHC Board of Directors approved the filing of a lawsuit challenging the requirement that physicians provide sufficient narratives on a patient’s homebound status and need for skilled care.
The lawsuit is ready to go. The intention is to file it in Federal District Court in Washington, D.C. with NAHC as the named plaintiff having “associational standing” to bring the case on behalf of its members. Three claims are included in the lawsuit:
1.) CMS does not have the authority to require the physician narratives as the authorizing statute passed by Congress only requires that a physician document that the encounter occurred;
2.) to the extent that CMS can require the narratives, the Constitution and Medicare law require CMS to promulgate standards for compliance that affected parties can understand and meet; and
3.) Medicare cannot deny a claim solely on the basis of the face-to-face encounter documentation, instead the whole record must be considered.
Since preparing the lawsuit, CMS has expressed willingness to considered resolution of the industry’s concerns without litigation. A meeting with CMS Medicare leadership is scheduled for May 8. Following that meeting, NAHC will determine whether further discussions and negotiations are worthwhile or whether the lawsuit should be filed immediately.
In its May 8 discussions, NAHC will convey that CMS needs to suspend claims reviews on the sufficiency of the physician narratives until negotiations are completed or terminated. NAHC further expects to maintain a continuing evaluation on the progress and value of negotiations thereby providing the opportunity to file the lawsuit whenever progress has stalled or ended.
In addition to the litigation and negotiation advocacy, NAHC and its Forum of State Associations have actively engaged in congressional advocacy on the breadth of issues raised by the face-to-face encounter requirements. We have requested that the House Committee on Energy and Commerce hold a hearing on the value and impact of the face-to-face requirements. While the committee has shown interest in such a hearing, the limited congressional calendar means that any such action will occur no earlier than post-election.
Beyond the congressional hearing, NAHC and the Forum are working to change the face-to-face law through the ongoing appropriation measures pending before Congress. The House Appropriations Committee controls all the monies going to federal agencies to fund their operations. Through the power of appropriations, it is sometimes possible to affect substantive government policy. It is a long shot, but one worthy of effort.
While this systemic reform action is underway, NAHC recommends that home health agencies continue to strive for compliance with the difficult face-to-face encounter documentation rules. Also, it is highly recommended that agencies preserve their rights to payment by filing administrative appeals on any questionable claim denials. Even though there is a significant backlog in the appeal system, the filing of an appeal remains the best way to protect your company from the impact of individual claim denials.