An Update on NAHC’s F2F Lawsuit
November 27, 2014 07:41 AM
Federal District Court Judge Christopher Cooper held a status conference on November 19, 2014 in NAHC’s lawsuit challenging the validity of the physician narrative requirement in Medicare’s face-to-face (F2F) physician encounter rule. The status conference was scheduled following the report to the court that the Centers for Medicare and Medicaid Services (CMS) had issued a Final Rule that rescinds the narrative requirement effective for starts of care January 1, 2015 and later.
In the status conference, Judge Cooper raised the question as to whether the lawsuit was “moot” given the rule change. A lawsuit is moot when there is no longer any live controversy.
NAHC counsel, Bill Dombi, explained that while CMS has rescinded the rule at issue, the controversy that led to the filing of the lawsuit remains, unfortunately, very much alive. With CMS’s decision to have its rule change apply prospectively only, the tens of thousands of previous claim denials have caused great harm. In addition, CMS continues to enforce the soon-to-be-departed narrative requirement with claims audits that could stretch on for many years. Currently, many of the claims under review are from 2011 and 2012, leaving claims through 2014 still subject to later audit even after the offending rule is dropped. Those claims will be reviewed under the current F2F standards.
Counsel for Medicare agreed that the case is not moot. He further conceded that CMS will continue to audit claims and that the old version of the rule will apply to any services prior to January 1, 2015.
Dombi expressed to the court that there is a need for quick action on the motions pending before the court. Currently, Medicare is asking the court to dismiss the lawsuit because of the alleged failure to exhaust all administrative remedies. NAHC has countered, arguing that Medicare has taken a final position on the issue as confirmed in the status conference. To amplify the need for court action, Dombi referenced the ongoing F2F audits in New England states where millions of dollars in claims has been retroactively denied in recent months.
The court did not issue any ruling in the status conference, but the judge indicated that he would be reviewing the case further. Dombi suggested that the court encourage Medicare to discuss a non-judicial resolution of the grievances. The judge expressed that he always supports settlements. However, Medicare’s counsel expressed that CMS is not interested in pursuing such discussions at this time.
NAHC recommends that home health agencies remain diligent in their efforts to provide sufficient physician narratives for all claims through the end of 2014 and that they be prepared to defend such claims through administrative appeals if they are subject to denials. While the lawsuit is continuing in order to try to resolve the past claim denials and ongoing audits, it is crucial that agencies protect themselves directly with individual appeals where necessary.