NAHC Files Brief in the Face-to-Face Physician Encounter Lawsuit
October 14, 2014 10:36 AM
NAHC’s lawsuit challenging the validity and administration of the Medicare face-to-face physician encounter rule is advancing in federal court. On October 10, 2015, NAHC filed a brief in opposition to the Motion to Dismiss submitted by the US Department of Justice on behalf of the Medicare program. That brief argues that the court has the full power to hear the case now rather than forcing beleaguered home health agencies to pursue individual administrative appeals through an already over-clogged system.
The NAHC lawsuit specifically challenges the part of the rule that requires physicians to compose a narrative explaining why a patient is homebound and in need of skilled nursing or therapy services. Medicare contractors have issued tens of thousands of claim denials on the basis that the physician narrative is “insufficient.” While Medicare has a proposed rule that would eliminate the narrative requirement prospectively, that proposal does not address the harm the narrative requirement has already caused. NAHC expects that the proposed rule will be finalized before the end of October. NAHC is continuing the litigation in hopes of reversing the past findings of “insufficient narratives.”
In its brief, NAHC argues that the court can waive any requirement that administrative appeals be fully exhausted because it would be futile to appeal given that administrative contractors and ALJs cannot invalidate a federal regulation and that CMS has issued its final decision upholding that rule. The NAHC brief also sets out that home health agencies face irreparable harm caused by the massive number of retroactive claim denials and demands for repayments.
“This is a difficult issue in Medicare litigation,” said Bill Dombi, NAHC’s counsel in the lawsuit. “The Supreme Court has ruled that Medicare claims need to be channeled through the administrative appeals process before a court can hear a case. However, there are situations, such as here, where a court has the discretionary power to find that it is unnecessary to take that futile path,” he added.
Medicare now has an opportunity to reply to NAHC’s opposition brief. If successful in that opposition, NAHC will then have a full opportunity to present arguments on the merits of the lawsuit - including that the rule itself is invalid because it requires more in documentation that Congress authorized. The lawsuit also alleges constitutional claims that due process protections have been denied because of the totally confusing standards issued by Medicare on what is a compliant narrative.
To read NAHC’s complete brief, please click here.