NAHC Lawsuit Challenges CMS Rule on Face-to-Face Encounters for Home Health Services
June 6, 2014 02:04 PM
The National Association for Home Care & Hospice (NAHC) filed a lawsuit on June 5, 2014, challenging the administration of the physician face-to-face encounter documentation requirements developed and administered by the Centers for Medicare and Medicaid Services.
The NAHC Board of Directors approved the filing of the lawsuit because the regulations have caused a dramatic upsurge in the retroactive denials of patient claims for payment under Medicare.
These denials are based on the allegations not that physicians had failed to see patients or certify them for payment but rather because physicians did not supply sufficient paperwork, i.e. a narrative and explanation for their judgment that patients are homebound or in need of skilled nursing or physical therapy.
“This new regulation, which had the goal of improving the quality of care, has had the opposite effect. It has created a crisis and is denying the infirm elderly the care that they need which is why we had no choice but to take our case to Federal Court,” said Andrea Devoti, Chairman of the NAHC Board of Directors.
The lawsuit was filed in the U.S. district Court in Washington, D.C. NAHC claims that CMS violated Medicare law in three respects:
CMS violated the law that authorized the physician face-to-face encounter by requiring that the physician provide a narrative that explains why a patient is home bound and in need of skilled care. The authorizing statute requires only that the physician document that the encounter occurred.
To the extent that CMS can require the physician narratives, CMS violated The U.S. Constitution and the Medicare Act by failing to provide adequate, reasonable, and clear guidance on the standards for compliance. In other words, CMS must explain what constitutes "sufficient" narratives.
CMS further violated Medicare law by allowing its contractors to deny payment retroactively based solely on the sufficiency of the physician narratives without reviewing the entire patient record to determine whether the patient is, in fact, home bound and in need of skilled care.
“We filed the suit reluctantly only after we tried to make CMS understand that their regulation was redundant, amounted to bureaucratic overkill, created disincentives for physicians to order home care services, and was leading to the loss of care by thousands of Medicare patients who are so sick that they cannot leave home without assistance,” said Val J. Halamandaris, President of NAHC.
NAHC had sought a suspension of retroactive reviews of the physician narratives as an interim action by CMS until such time as CMS revised its rules. CMS informed NAHC that it plans to issue possible revisions in an upcoming proposed rule scheduled for release in late June or early July. Given that home health agencies are experiencing an endless series of claim denials based on the sufficiency of the physician narratives, NAHC determined that is was not in the best interest of the home health community that it take a chance on the possibility of a proposed rule that might provide some undefined change in the requirements which would take effect no earlier than late October when the final rule changes would be issued.
NAHC expects to pursue a preliminary injunction designed to expedite the court's review of the claims presented. Following that effort, NAHC will ask the court for summary judgment on the claim that CMS does not have authorization to require the physician narratives. A trial on the other claims may be needed since there may be disputed factual issues.
While the lawsuit is pending, NAHC will continue to work with members of Congress in hopes of a legislative remedy. Currently, NAHC and its affiliated Forum of State Associations are engaged in an effort to secure relief through the appropriations process underway in the House of Representatives. NAHC has also extended an offer to CMS to reopen the settlement negotiations in hopes of avoiding protracted litigation. NAHC believes that CMS recognizes the need for corrective action on the face-to-face rule.
The lawsuit is being prosecuted by Bill Dombi, NAHC’s Vice President for Law.
Mr. Dombi has a long history of successful litigation against the U.S. Government and health insurance companies on behalf of the home care industry.
NAHC is asking all Medicare patients and provider organizations to join in supporting this litigation.
To access the Compliant filed in federal court, go to this link. Ongoing reports on the progress of the litigation will be published in NAHC Report.