NAHC Lawsuit Challenging the Medicare Face-to-Face Rule Presented in Court
August 6, 2015 05:01 PM
Counsel for the National Association for Home Care & Hospice (NAHC) presented oral argument before U.S. District Court Judge Christopher Cooper on August 6, 2015, regarding NAHC’s lawsuit challenging the validity of the physician narrative requirement in the physician face-to-face encounter rule. While Medicare rescinded the narrative requirement from its rule after NAHC filed its lawsuit last year, Medicare has not provided nearly $200 million in retroactive payments to home health agencies that were wrongfully denied claims because of the now-rescinded narrative requirement. NAHC brought litigation on the validity of the narrative requirement so that home health agencies that provided care to patients in good faith are paid for their inappropriately disallowed claims.
“We are trying to fix an injustice for the home health agencies that are stuck in limbo with nearly $200 million in unpaid claims because of the now-rescinded narrative requirement,” stated Val J. Halamandaris, President of NAHC. “Medicare rescinded its ill-conceived narrative requirement after we filed this lawsuit last year. However, we are still trying to clean up the mess the narrative requirement left behind—nearly $200 million in wrongful claim denials to home health agencies. These home health agencies provided services to Medicare patients in good faith, and they should receive payment for the nearly $200 million in claims that they were wrongfully denied.”
After months of back and forth legal briefs by NAHC and the Medicare program, the home care community finally had its day in court regarding its lawsuit challenging the validity of the physician narrative requirement in the physician face-to-face encounter rule. The parties presented their oral arguments to U.S. District Judge Christopher Cooper. It was quickly apparent that Judge Cooper was very engaged in the nuances of the litigation and fully cognizant of its importance to Medicare home health care beneficiaries and providers.
The NAHC position was argued by Bill Dombi, Director of NAHC’s Center for Health Care Law. Counsel’s argument focused on the language of the provision in the Affordable Care Act that mandated the physician face-to-face encounter, contending that the plain language requires only that the physician document that the encounter occurred. “The issue is what the whole provision states, not the single word ‘document’ as the Medicare program wishes to be the case,” stated Dombi. That argument was directed to Medicare’s contention that the word “document” is ambiguous and that Medicare has the authority to define ambiguous terms in any reasonable way that it wishes, including a requirement that the physician had to explain, in a narrative, why a patient meets Medicare coverage standards.
As an alternative, NAHC counsel argued that the narrative requirement was not a reasonable or rational interpretation, as the result of that policy leads Medicare beneficiaries and their providers denied coverage even where the whole record supports coverage. “Congress did not authorize a rejection of a claim based solely on the review of the limited physician narrative, particularly when the full record clearly demonstrates coverage,” he stated. NAHC’s counsel referenced the court to a Medicare determination where the contractor explicitly found that the full record supported a finding that the patient met Medicare homebound and skilled care requirements, but denied it on the basis that the physician’s homebound narrative was insufficient. While Congress intended the face-to-face requirement as a program integrity measure, “Medicare’s implementation triggered the opposite outcome, where bona fide claims were denied based on a reviewer’s rejection of the physician’s choice of words, grammar, or sentence structure,” he stated.
Medicare was represented by Justin Sandberg of the U.S. Department of Justice. Sandberg argued that Medicare has the discretion to interpret the law when it is ambiguous and reasonably did so with the face-to-face encounter law. He emphasized the points made in his written briefs that the word “document” is ambiguous and that the narrative requirement is consistent with congressional intent to address waste, fraud, and abuse.
District Judge Cooper posed numerous well focused questions to both parties. Of particular concern for the judge was whether the challenged rule, on its face, permitted Medicare to deny a home health services claim based solely on the sufficiency of the physician narrative, regardless of what the whole patient record revealed on the patient’s homebound status and skilled care need. While Medicare’s counsel tried to avoid a direct answer, NAHC counsel explained to the court that Medicare’s rule empowered its contractors to issue such claim denials based on that basis alone. “Such a rule is not reasonable or rational as it leads to absurd results that are morally offensive,” stated NAHC’s counsel.
“We are confident that the judge fully understands the issues and we presented a strong and forceful argument on behalf of the home health care community,” stated Halamandaris. “We will continue this fight as long as it takes to make things right,” Halamandaris added.
There is no timetable for the court to issue its ruling in the case. If a favorable decision is rendered by the judge, Medicare will be required to reopen and pay all the claims rejected in the past on the basis that the face-to-face narrative was insufficient. While NAHC and the home health care community awaits the court’s ruling, NAHC continues to press for congressional relief on the face-to-face encounter requirements including a reversal of past denied claims. “We must employ all options to protect home health agencies from misguided federal rules,” explained Halamandaris.