NAHC Lawsuit on Face-to-Face Physician Encounter Rule Advances
September 18, 2014 09:40 AM
The lawsuit challenging the validity of Medicare's requirement that physicians provide a narrative to support their certification of a patient's homebound status and skilled care need is advancing in Federal District Court. The Department of Justice has filed a motion to dismiss with the court arguing that the court does not have the power to hear the case. This motion to dismiss is a typical action in Medicare litigation through which Medicare attempts to avoid the scrutiny of the federal court.
The Medicare Motion to Dismiss argues that NAHC failed to exhaust all administrative remedies prior to filing a lawsuit in federal court. In addition, the government motion claims that the NAHC complaint fails to state a cause of action that the court could hear. Over the past 25 years, the federal courts have restricted what's known as "jurisdiction" on Medicare related matters. Earlier decisions from the US Supreme Court generally require an exhaustion of administrative appeals.
NAHC anticipated this type of response from Medicare attorneys. "This is a "garden variety" type of defense offered in Medicare litigation," stated Bill Dombi, the lead counsel in the lawsuit. "We believe that the exhaustion of administrative appeals is not necessary in this matter for several reasons," he added.
The NAHC lawsuit counters the government's defensive action in its allegations that Medicare has already reached a final decision on the issues presented administratively. NAHC presented all of the lawsuit claims prior filing the case in court to the head administrator of Medicare at the Centers for Medicare and Medicaid Services (CMS). These efforts to resolve the concerns with the face-to-face encounter documentation requirements were rebuffed by CMS, thereby triggering the right to go to court.
The lawsuit also claims that there is a right to judicial review under the Mandamus Act, which gives federal courts a right to review disputes with government actions when the challenged activity is in direct conflict with the laws passed by Congress. With the face-to-face encounter rule, the lawsuit alleges that Congress specifically limited documentation requirements in a way that does not permit the narrative requirement added by CMS. The law itself only requires that physicians document that the encounter occurred.
NAHC has until October 10 to respond to the government's motion. Medicare will have the opportunity to reply to the NAHC response thereafter.
It is expected that CMS will issue a Final Rule on the proposed changes to the face-to-face documentation requirements prior to the close of the briefing in the lawsuit. While it is anticipated that CMS will continue its plan to eliminate the narrative requirement, the lawsuit is continuing with the design of bringing a favorable resolution on the past-denied claims where Medicare contractors rejected physician narratives as "insufficient."