NAHC Files Brief in F2F Lawsuit

REPRINT:  Via Home Care and Hospice Executives Group

The National Association for Home Care & Hospice (NAHC) filed its closing brief in the lawsuit challenging the Medicare rule that required physicians to compose a narrative following the patient face-to-face encounter to explain why the individual met the homebound and skilled care need elements of the Medicare home health services benefit. The now-rescinded narrative requirement triggered tens of thousands of claim denials based on Medicare contractors claiming that the narrative statements were insufficient to support the physician certification that the patient was homebound and in need of skilled care.

Within weeks of NAHC’s lawsuit filing, the Centers for Medicare and Medicaid Services (CMS) dropped the narrative requirement from its rule. However, home health agencies nationwide were left with significant claim denials and financial losses stemming from the inconsistent and irrational administration of an unmanageable documentation standard. NAHC continues to litigate the validity of the narrative requirement to address an estimated $150-200 million in claim denials along with the risk that claims prior to the 2015 rescission of the rule could still be audited.

In its brief, NAHC argues that the plain language of the Affordable Care Act provision requiring a physician face-to-face encounter prohibits CMS from imposing the narrative requirement. In the alternative, the NAHC brief argues that the narrative requirement is an arbitrary and capricious rule in that it does not have a rational basis generally or in the context of the Medicare program as a whole. CMS has insisted throughout the litigation that it has the discretionary authority to require a physician narrative and that its implementation of such was reasonable.

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At the core of the recent NAHC brief is the argument that CMS’s claim of discretionary authority is merited only if the word, “document,” is taken out of context of the F2F provision as a whole. In other words, CMS argues that it can disregard the full language of the statutory provision and rely solely on its power to define a single word within a sentence. NAHC argues that under such an approach to statutory interpretation, every word of every law is potentially subject to a federal agency interpreting that word inconsistently with the meaning intended by Congress as virtually all words in the English language can have multiple interpretations. NAHC argues that the word in the context of the sentence as a whole gets its proper meaning.

In this case, the law passed by Congress provides that the physician must document that the encounter occurred within the permitted timeframe. By isolating the word “document” from that provision as a whole, CMS argues it can require certifying physicians to document why the patient is homebound and in need of skilled care as the word “document” can mean “why” as well as “what.” In response, NAHC argues that the sentence as a whole focuses the physician’s documentation responsibility solely on when the encounter occurred. Further, if the word document includes a focus on “why,” then the physician would be documenting why the encounter occurred on a particular date, not on why the patient is homebound and in need of skilled care.

NAHC further argues that the CMS requirement is irrational in that it results in an outcome that is the opposite of what Congress intended. It is readily apparent that Congress enacted the face-to-face encounter requirement as a program integrity measure to protect against Medicare paying for services provided to individuals who are not homebound and in need of skilled care. However, with CMS’s implementation of the requirement, homebound patients in need of skilled care have been denied Medicare coverage because a claims reviewer did not accept the sufficiency of the physician’s narrative. NAHC argues that Congress did not intend for Medicare to deny benefits because of a physician’s grammar, sentence structure, or choice of words in the narrative. NAHC argues that the whole patient record should control the coverage decision, not a small part of it such as the physician narrative.

The CMS position is based on a reliance on case law that provides that a federal agency has the right to issue interpretive rules provided those rules are not inconsistent with the plain language of the law passed by Congress or an arbitrary and capricious interpretation of that language. Courts have routinely held that a federal agency’s interpretation is entitled to deference and that, even if that interpretation is not the best one, it will be upheld unless it clearly violates the law.

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Evidence in litigation in this type of case is confined to the regulation’s Administrative Record, i.e. the information CMS had at its disposal at the time the rule was developed. Within the Administrative Record are the public comments submitted on the proposed rule. NAHC’s brief argues that there is no evidence in the 5291 pages of that record to support the imposition of the narrative requirement. In fact, there is not even a single submitted comment that agreed with CMS that the narrative requirement made any sense. Instead, the record is populated by hundreds of comments that explain to CMS that its proposed narrative requirement would be totally unmanageable and problematic. As it turned out, CMS finally recognized the validity of those comments in 2014 and rescinded the narrative requirement.

NAHC is seeking relief that includes an invalidation of the narrative requirement from its inception, an injunction to prevent any further claims reviews applying the narrative requirement, a reopening of all narrative-based claim denials since January 1, 2011, and a payment on any past denied claims.



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