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NAHC Filed Brief in Face-to-Face Lawsuit

Thursday, May 21, 2015  
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The Arizona Association for Home Care is a member of the National Association for Home Care and has republished this article with permission.

Originally published by NAHC on May 12, 2015

The continuing legal challenge to the Medicare home health services physician face-to-face narrative requirement advanced with the filing of NAHC ‘s Motion for Summary Judgment and supporting Memorandum of Law. The Medicare program has until June 26, 2015 to respond followed by a July 24 deadline for the NAHC final brief.

In terms of the legal issues presented in the case, NAHC must establish that the plain language of the law does not permit the physician narrative requirement. If the language of the law is unclear or ambiguous, NAHC must prove that the requirement is unreasonable or arbitrary and capricious.

In its brief, NAHC argues that the plain language of the face-to-face physician encounter law only permits Medicare to require that the physician document that the encounter occurred during the allowable timeframe. The Centers for Medicare and Medicaid Services (CMS) had previously argued in its brief that the narrative was a permitted interpretation of the word “document” that is contained in the law.  CMS’s position is that it has the authority to require that a physician document “why” the physician considers a patient meets the homebound and skilled care requirements.

NAHC’s position on the plain language argument is supported by a review of the entire sentence that includes the word “document.” That full sentence supports NAHC’s reading over the CMS reading that is based on isolating the word “document” in a silo. NAHC also argues that the narrative is a physician’s opinion, not something that fits as a matter to be documented.

Beyond the plain language, NAHC argues that the narrative is not reasonable and results in arbitrary determinations from Medicare. Specifically, NAHC explains in its brief that the narrative requirement leads to claim denials for patients who are truly homebound and in need of skilled care because the review of a physician  narrative ignores the patient’s full clinical record. NAHC argues that the policy is arbitrary and capricious because is allows a partial record review, e.g. the narrative, to control the outcome on Medicare coverage.

NAHC further supports its arguments with evidence of the confusion surrounding the standard for a compliant physician narrative, the high rate of claim denials, and the failure of CMS to provide adequate guidelines on compliance. Also, NHC explains that CMS itself abandoned the requirement when it realized it was virtually impossible to administer it fairly.

While the narrative requirement has been rescinded, NAHC is continuing the lawsuit for purposes of resolving the tens of thousands of claims previously denied for an “insufficient narrative” as well as possible future audits of claims from 2014 and earlier.   NAHC continues to seek overall relief from the face-to-face requirements and hopes to secure a legislative remedy from Congress shortly.

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