Posts Tagged ‘face-to-face’

Judge Allows Face-to-Face Lawsuit to Move Forward

January 7, 2015

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

April 10, 2014

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!

Congressional Letter Opposing Face-to-Face Documentation Requirements Sent to CMS’ Administrator

September 27, 2013

Last week, a bipartisan group of 75 Members of Congress sent a letter to Marilyn Tavenner, the Administrator for the Center for Medicare and Medicaid Services (CMS), on the overly complicated and burdensome face-to-face (F2F) physician encounter documentation requirements promulgated by CMS.  The letter asserts that these documentation requirements go well beyond what the Affordable Care Act (ACA) required.

The letter was circulated by Representatives Tom Reed (R-NY), Paul Tonko (D-NY), Chris Smith (R-NJ), and Robert Andrews (D-NJ), and was sent to every congressional office asking for additional Member support.

New York and New Jersey NAHC members initiated the sign on letter and NAHC members and advocates were integral in the effort to get the 75 lawmakers to add their name to the letter.

HCAF worked diligently to get Congressmen from Florida to add their names to the letter. We are very thankful to Rep. Kathy Castor (D-FL 14) and Rep. Alcee Hastings (D-FL 20) for including their names on the letter.

The final 75 lawmakers who signed the letter are Democrats and Republicans from every region of the country representing rural, urban and suburban populations. In the letter, the lawmakers express their primary concerns with the F2F encounter requirement:

”[U]nder the Affordable Care Act (ACA), Congress included a provision aimed at increasing collaboration between home health agencies and physicians. This provision, implemented by the Centers for Medicare and Medicaid Services (CMS), is known as the Face-to-Face (F2F) Encounter Requirement. While we support the need for direct encounters between patients and physicians to occur, the current regulations contain complicated, confusing, and overlapping documentation requirements that exceed the intent of the law passed by Congress. These requirements have imposed a significant burden on home health providers and physicians in our districts.

As implemented by CMS, physicians are now required to document, sign and date an additional form with a narrative of the patient’s condition in order to justify home care services. Home health agencies must obtain this signed form prior to billing for Medicare home health services… Prior to billing for Medicare home health services, home health agencies already must obtain a signed and dated form from the physician which outlines the full plan of care…We have heard from home health agencies that believe as a consequence, these new forms are counterproductive to the underlying F2F intent.”

HCAF and NAHC will be working with the sponsors of the letter on follow-up with CMS.  Please continue to send Mary Carr ( your examples of F2F claims denials that you do not believe were justified, as well as physician complaints about the F2F documentation requirements, to aid in our advocacy with CMS.

To read the full article that was sent to Ms. Tavenner, as well as to see the final list of signees, please click here.

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CMS Revises Policy on the Use of Rubber Stamp Signatures

May 23, 2013

The Centers for Medicare & Medicaid Services has issued Change Request 8219 which amends the signature requirement policy to permit a rubber-stamped signature on Medicare documentation in instances where the author has a physical disability that prohibits him/her from producing a handwritten signature. (more…)

Palmetto GBA: Medical Review Requirements for HH Face-to-Face Documentation

May 22, 2013

Palmetto GBA has noticed an increase in overpayments for Home Health Prospective Payment System (HH PPS) claims. The top reason for this increase is attributed to the requirement for a face-to-face encounter with the beneficiary.

Palmetto GBA evaluated its criteria for review of these types of claims. Effective immediately, Palmetto will begin a more comprehensive review using the regulations governing these types of claims. Palmetto GBA encourages all providers to review their internal processes to ensure that all of the criteria for coverage have been met and documented in the medical record. (more…)