NAHC Lawsuit Against CMS Over Face-To-Face Announced at the March on Washington
It was announced at NAHC’s March on Washington, which concluded earlier this week, that the National Association for Home Care and Hospice (NAHC) is planning to file a lawsuit against CMS regarding the face-to-face requirement that was part of the Affordable Care Act.
Below is the text of a recent Inside Health Policy articlein its entirety that addresses NAHC’s planned lawsuit, reprinted with the publisher’s permission:
NAHC Plans To Sue CMS Over ACA's Home Health Face-To-Face Requirements
The National Association for Homecare and Hospice is laying the groundwork to sue CMS next month over its implementation of the Affordable Care Act's home health face-to-face documentation requirement, as providers' frustration has mounted with face-to-face denials and requirements to meet unknown standards in order to be paid for care provided in good faith, Inside Health Policy has learned.
Bill Dombi, vice president for law at the NAHC, told members at NAHC's "March on Washington" meeting that the lawsuit will be crafted as a cry for help. Dombi said that providers have tried unsuccessfully to talk with CMS multiple times, and maybe the parties need a mediator. Dombi said the hope is CMS will not take the lawsuit as a "shot across the bow" but a flag of surrender from providers looking for better guidance and clarity.
The face-to-face requirement is a condition for payment mandated by the ACA. The law says the certifying physician, prior to certifying a patient's eligibility for the home health benefit, needs to document that he or she had a face-to-face encounter with the patient. The visit must take place 90 days before the start of home care or within 30 days of home care beginning.
Frustration has bubbled up over a required brief narrative describing patients' clinical conditions and how the condition supports homebound services. Home health providers say they can't get that information from doctors in the narrative form, as doctors don't think or write that way. It's an unrealistic expectation, and home health providers say they are seeing claims denied due to documentation problems over which they have little control. Providers say there is also confusion and a lack of clarity over what the face-to-face narrative requires.
Some Medicare Administrative Contractors had about an 80 percent denial rate last quarter for face-to-face, NAHC officials told members, though there are differences among the contractors and the MAC reviews are subjective and inconsistent.
"No matter what we do, we can't get it right," NAHC Vice President for Regulatory Affairs Mary Carr said, and providers feel they are not getting anywhere with CMS.
Dombi laid out three basic arguments for the lawsuit.
First, providers believe that the requirement for the narrative is outside the authority granted to CMS by the ACA. But NAHC officials note that while the odds are pretty good that the court could say CMS doesn't have authority under the ACA to require the narrative, the court could determine that CMS has such authority from a program integrity standpoint.
A second argument may center on due process, as under Medicare processes CMS needs to publish clear, concise guidelines for what it takes to comply with rules and regulations.
Lastly, home health providers say that if a doctor provides the necessary information, claims shouldn't be denied for lack of documentation if it is present in the rest of the medical record.
Dombi said the NAHC plans to talk with beneficiary advocates, disability groups and others about potentially joining the suit.
NAHC is quite willing to have further discussions with CMS, Dombi said, and also suggested that providers urge lawmakers to consider holding a hearing on the issue. But he conceded that providers may lose an opportunity for a hearing after filing the lawsuit.