Judge Allows Face-to-Face Lawsuit to Move Forward

Another huge win for home care! This particular ruling could have major implications…..

• CMS approaching our industry with a settlement offer on the thousands of denied claims that are being held in limbo at the ALJ level because of the F2F narrative, so start considering what you might accept on your denied claims.
• It could help slow down or lessen the intensity of the next round of F2F audits from RACs and MACs. They are gearing up and this may take a little wind out of their sails.
• It strengthens our industry and gains us respect and leverage on a host of other critical issues. This will help us!

We are very grateful to all home care providers who choose every year to support associations like NAHC and HCAF. It is your dues dollars that made this happen. Thank you.  

January 5, 2015

Federal Court Rules in Favor of Homecare

Clears the Way for NAHC’s Face-to-Face Lawsuit to Go Forward

Today, a federal district court issued a resounding victory for the National Association for Home Care & Hospice (NAHC) and the home health agencies, Medicare participating physicians, caregivers, and beneficiaries it represents. The U.S. District Court for the District of Columbia held that it has the power to hear a challenge to the validity of a Medicare rule that requires physicians to provide a “narrative” explaining why the patient meets Medicare coverage standards for home health services. The court issued an order denying Medicare’s effort to have the lawsuit dismissed by the court.

The Centers for Medicare and Medicaid Services (CMS) issued a face-to-face rule that physicians had to lay eyes on patients and certify under penalty of law that that they were eligible to participate in Medicare and, more specifically, were “homebound” and needed “skilled care.” In addition, the rule required physicians to write a detailed narrative explaining the reasons why they thought this was true. This new requirement caused widespread chaos, spurred a physician rebellion, and in the end deprived many seniors from receiving the care to which they were entitled under the Medicare home health benefit.

NAHC convinced groups representing seniors and the disability community to join together with physician organizations and thereby succeeded in convincing a majority of the Senate to send a letter intervening on NAHC’s side in this matter. NAHC also filed suit in federal district court to overturn the onerous rule. The result was that CMS withdrew the physician narrative requirement which would have been effective January 1, 2015.

NAHC asked CMS to give the decision retroactive effect and pay claims that were denied between 2011 and 2014, but CMS denied to do so. NAHC made other appeals to CMS to settle the suit which it could have done by paying some $250 million owed to home health agencies for care they gave to Medicare patients between 2011-2014. This gave NAHC no choice but to proceed with the litigation.

In today’s action, the court ruled against the government on its motion to dismiss this case. The government attorneys had interposed numerous reasons, both substantive and procedural, as to why the case should not go forward, all of which were turned aside.

The court held that it would be futile for home health agencies to pursue endless administrative appeals challenging the requirement as Medicare had made it clear that it would reject all such appeals. By denying Medicare’s Motion to Dismiss, the legal validity of the narrative requirement will be fully reviewed by the federal court.

Medicare had filed a Motion to Dismiss the lawsuit arguing that administrative appeals had to be fully completed before a court had the power to hear a Medicare dispute. Medicare also argued that the case should be dismissed because the narrative requirement, on its face, was a valid interpretation of the authorizing law in the Affordable Care Act. Federal District Judge Christopher R. Cooper rejected both of these defenses.

Judge Cooper found that it would be futile for home health agencies to pursue administrative appeals because Medicare had definitively stated that it considered the requirement to be valid. NAHC had argued that Medicare had issued a final decision on the validity of the rule numerous times including when Medicare officials met with NAHC as well as in its issuance of the recent rule change that eliminated the narrative requirement. Judge Cooper agreed. He described the challenged policy as “embedded” and that “nothing indicates that administrative appeals might result in the agency overturning its regulation.”

While rejecting Medicare’s attempt to escape judicial review of the face-to-face narrative requirement, the court did grant dismissal of two additional claims in the lawsuit. NAHC also challenged the ambiguity of the interpretive guidance issued by the Centers for Medicare and Medicaid Services along with its failure to waive the recoupment of alleged overpayments under the Medicare “without fault” provision. On those matters, the court found that the factual complexities warranted a review of individual claim determinations at the administrative levels prior to any judicial intervention.

NAHC and Medicare will now move forward with the lawsuit. The next steps would include the filing of cross-motions for Summary Judgment. Summary Judgment is the equivalent of a trial on the merits of the claims where there are no material issues of facts in dispute. Here, NAHC argues that the plain language of the law prohibits Medicare from adding the burdensome narrative as a documentation requirement. The law itself only permits Medicare to require that a physician document that a face-to-face encounter occurred and when. As such, it is claim based on the language of the law itself and does not involve any facts other than that Medicare requires more documentation.

NAHC continues to litigate the dispute in spite of Medicare’s rescission of the narrative requirement to address the past claim denials and those denials that may still come involving home health services provided prior to January 1, 2015. If the lawsuit is successful, Medicare would be required to reopen and pay any claim previously denied for an insufficient narrative and stop any further claim reviews related to the narrative requirement.

NAHC continues to advise home health agencies to consider appealing any narrative-related claim denials while the lawsuit is progressing. Such action will preserve the opportunity to have the claims reviewed by Administrative Law Judges and also allow for easy identification of claims that may be subject to reopening if the lawsuit is successful.

“This great victory in federal court means that Medicare patients, physicians, and the home health community will have their day in court,” said NAHC President Val J. Halamandaris. “It is a clear signal that a federal judge also does not see why a rule which CMS had invalidated effective January 2015 should be honored for the years 2011, 2012, 2013, and 2014. There is no reason why the home care community should not be paid for the services it rendered in good faith to Medicare home health beneficiaries.”

Bill Dombi, NAHC’s Vice President for Law, appealed to CMS to save Medicare the cost of the trial. “We urged them to do the right thing. The right thing is to pay these claims. NAHC intends to pursue this litigation until CMS agrees to do so.”

OIG Study on Face-to-Face Recommendations to CMS: Standardized Form, Physician Education, Increased Oversight

The Office of Inspector General has published a study on the Medicare Home Health Face-to-Face (F2F) documentation requirement which highlights several solutions home care providers have suggested to improve compliance.

The study looked at 644 F2F encounter documents to analyze to what extent the documents confirmed encounters and contained the required elements as set out by CMS. The study sought to do three things:

1. Determine the extent to which physicians who certified home health care documented the face-to-face encounters,
2. Describe the nature of face-to-face documentation, and
3.  Assess CMS’s oversight of the face-to-face requirement.

In addition, OIG interviewed the four Home Health and Hospice Medicare Administrative Contractors (HH MACs) to describe how they ensure that home health agencies met the face-to-face encounter requirements. The Office also reviewed guidance documents and policies from CMS or the HH MACs about monitoring the face-to-face requirement.

Read more in the Member’s Only section of HCAF’s website

Want access to this content? Join the premier organization representing the home health industry in Florida! The Home Care Association of Florida represents over 700 Florida home health care providers and vendors to the home care industry. HCAF strives to be the foremost resource and advocate for Florida’s home care industry and the patients our members serve. The Association is an active voice which continually interacts with state and federal lawmakers, regulatory agencies and fiscal intermediaries to interpret, challenge or support regulations that affect the home health care industry. We can help you stay in the race and get ahead of the pack!

CMS to Pay Physicians for Services Related to Care Transitions

The 2013 physician fee schedule rate update rule includes a new policy to pay a patient’s physician or practitioner to coordinate the patient’s care in the 30 days following a hospital or skilled nursing facility (SNF) stay. CMS believes recognizing the work of community physicians and practitioners in treating a patient following discharge from a hospital or nursing facility will ensure better continuity of care for these patients and help reduce patient readmissions.

The rule added two new Current Procedural Terminology (CPT) codes – 99495 and 99496 – for transition care management (TCM). These codes allow physicians and non-physician practitioners to bill for non-face-to-face services provided by the physician or practitioner and their clinical staff during the thirty days following discharge from a hospital or SNF.

CMS Clarifies F2F Documentation Title and Date Policy

Face-to-face changes finalized in the 2013 Home Health PPS update Federal Register notice are effective for episodes ending on it after January 1. In this notice the Centers for Medicare & Medicaid Services (CMS) wrote: “We are finalizing regulatory text changes as proposed. The regulation text in part 424 will be changed to not be prescriptive as to what entity needs to date and title the face-to-face documentation, but will still require the same content and the certifying physician’s signature.”

In an effort to clarify the intent of changes related to titling and dating F2F encounter documentation, the National Association for Home Care & Hospice (NAHC) asked the CMS to confirm whether home health agencies are now permitted to title and date F2F encounters, and to clarify what “date” the change is referring to. “That is, is this the date of the encounter, the date of the signature, or is there some other date?”

CMS Home Health, Hospice & DME Open Door Forum

Session Updated Information on 2013 HHPPS Final Rule

The Centers for Medicare & Medicaid Services held its latest Home Health, Hospice, and Durable Medical Equipment (DME), Prosthetics, and Orthotics Open Door Forum on Nov. 28, that updated information on the 2013 home health prospective payment (HHPPS) final rule, Home Health Consumer Assessment of Healthcare Providers and Systems (HHCAHPS), home health and hospice quality measure reporting, and hospice claims processing issues.

HHPPS Final Rule

CMS Proposes Relaxed Home Health Face-to-Face Encounter Requirements

The Centers for Medicare and Medicaid (CMS) on July 6 issued the proposed rule for 2013 payment rates. This proposal included revisions to home health face-to-face (F2F) requirements that will provide some relief to home health agencies, physicians, and non-physician practitioner in their efforts to be in compliance with certification requirements.

CMS Releases Proposed Rule for 2013 HHPPS Rates

The Centers for Medicare and Medicaid issued the proposed rule regarding 2013 payment rates late Friday. The proposal includes the 2013 Market Basket Index (MBI) update, the required 1 point reduction under the Affordable Care Act, and the previous set 1.32% case mix creep adjustment. It also includes a few policy clarifications regarding the face-to-face rule, surveys scheduling, and the imposition of intermediate sanctions for conditions of participation noncompliance.

CMS Responds to Inquiry on HHA PECOS Status

Centers for Medicare & Medicaid Services (CMS) in April published the final rule “Medicare and Medicaid Programs: Changes in Provider and Supplier Enrollment, Ordering and Referring, and Documentation Requirements; and Changes in Provider Agreement.”

Provisions of this final rule included an announcement of plans to develop and activate home health edits for enrollment of ordering and referring physicians. The full text of the final rule can be accessed here.

CMS Website Updates Therapy Q&As

The Centers for Medicare & Medicaid Services (CMS) in March revised the questions and answers posted at the Home Health Center on its website.

Although the CMS responses do not reflect policy changes, the information offers greater clarity to therapy reassessment policy. The document can be found at Therapy Questions and Answers (Note: the date on the web link of 7/29/11 has not been update to reflect the March update).

One topic that has been confusing for home health agencies has been the question of how to count non-covered visits resulting from failure to comply with 13th and 19th visit and 30 day reassessment requirements. In this set of Q&As CMS offered the following:

Medicare Releases Physician’s Guide to Home Health Certification

MLN Matters, CMS’ publication for Medicare fee-for-service providers, focuses on Medicare home health certification in a special edition entitled “A Physician’s Guide to Medicare’s Home Health Certification, including the Face-to-Face Encounter”.

This article is designed to provide education to physicians on requirements for the home health certification and face-to-face encounter. It includes milestones and requirements that must be met to perform Physician Home Health face-to-face encounters, certifications, and recertifications. A link to frequently asked questions about the Home Health Face-to-Face Encounter is also included.