(June 11
2014): The Department of Health and Human Services (HHS) and its
agency the Centers for Medicare and Medicaid Services (CMS) have suffered yet
another recent blow with the June 5th filing of a lawsuit against
the agency by the National Association for Home Care & Hospice (NAHC). This most recent lawsuit against CMS was
filed in connection with agency’s application of the Medicare “Face-to-Face”
rules. As you will recall, less
than two months ago, on April 14, 2014, the American Hospital Association (AHA)
and several other interested parties filed a lawsuit against HHS in connection with the way that CMS has been
administering the “Two Midnight” rule on inpatient admissions. Even more
recently, on May 22, 2104, the AHA filed a completely separate lawsuit against HHS for the failure of
the Office of Medicare Hearings and Appeals (OMHA) to comply with applicable
statutory deadlines regarding the administrative review by an Administrative
Law Judge (ALJ) of claims denied by Recovery Audit Contractors (RACs). Collectively, these lawsuits reflect a
growing discontent by health care providers with the way that Medicare claims
are being processed and handled by HHS and its agencies. With NAHC’s initiation of litigation over
CMS’s implementation of the “Face-to-Face” rules, the dissatisfaction of home
health agencies around the country with the way that their Medicare claims are
being handled has now moved to the forefront of the debate on how the Medicare
program is being managed by CMS.
I. Basic face-to-face dispute:
Under the provisions of the Affordable Care
Act (ACA), a face-to-face examination between a qualified physician and a
Medicare beneficiary must be conducted to ensure that a patient qualifies for
home health services.
On June 5, 2014, NAHC filed suit against both HHS and CMS challenging the
government’s implementation of overly complex face-to-face rules which have
greatly expanded the documentation requirements which must be met in order to
show that a Medicare beneficiary is homebound and is in need of skilled nursing
and / or skilled therapy services. As NAHC has alleged in its lawsuit, CMS has:
“devised and
administered these physician documentation requirements in a manner that
renders it nearly impossible to achieve compliance as they are wholly
confusing to physicians, home health agencies, and patients, leading Medicare
administrative contractors to evaluate claims in a manner that is inconsistent,
arbitrary, and inaccurate. (Emphasis Added).
Essentially, NAHC has
argued that CMS has placed “form” over “substance,” choosing to examine whether
a home health provider has adhered to complex documentation requirements rather
than focus on the best interests of the Medicare beneficiaries for whom they
are responsible. As a result of the agency’s actions, countless home health
claims filed by agencies around the country have been denied because their
face-to-face documentation has allegedly failed to meet the documentation
guidelines that have been implemented by CMS.
Perhaps most importantly, home health agencies have been forced to
discharge Medicare beneficiaries from services because the face-to-face
documentation examined by CMS or one of its contractors does not allegedly show
that a patient qualifies as “homebound.”
II. How has CMS implemented the “homebound”
requirements mandated under the ACA?
When
formulating the regulations intended to implement Section 6407 of the ACA, CMS
set out physician documentation requirements under 42 CFR 424.22(a)(1)(v) which
specifies, in part, that:
“(v) The physician responsible for performing the initial
certification must document that the face-to-face patient encounter, which is
related to the primary reason the patient requires home health services, has
occurred no more than 90 days prior to the home health start of care date or
within 30 days of the start of the home health care by including the date of
the encounter, and including an explanation of why the clinical findings of
such encounter support that the patient is homebound and in need of either
intermittent skilled nursing services or therapy services as defined in Sec.
409.42(a) and (c) of this Chapter, respectively.”
Subsection
(F) further provides that:
“(F) The physician responsible for
certifying the patient for home care must document the face-to-face encounter
on the certification itself, or as an addendum to the certification (as
described in paragraph (a)(1)(v) of this Section), that the condition for which
the patient was being treated in the face-to-face patient encounter is related
to the primary reason the patient requires home health services, and why the
clinical findings of such encounter support that the patient is homebound and
in need of either intermittent skilled nursing services or therapy services as
defined in § 409.42(a) and (c) respectively. The documentation must be
clearly titled and dated and the documentation must be signed by the certifying
physician.”
CMS subsequently published a series of instructional
materials in an effort to educate both referring physicians and home
health agencies on the agency’s expectations in terms of the supporting
documentation which must be shown, focusing on the face-to-face encounter
requirements that must be shown in order for a claim to qualify for coverage
and payment. In response to continuing
questions and related concerns by home health providers around the country, in
January 2014, CMS issued MLN
Matters, SE 1405, titled “Documentation
Requirements for Home Health Prospective Payment System (HH PPS) Face-to-Face
Encounter.”
III. The nature of the face-to-face problem:
Unfortunately, in audits
conducted on behalf of CMS, various federal contractors
have often found that the face-to-face encounter documentation completed by
physicians
referring patients for home health services have not properly included an
appropriate “brief narrative statement” which describes a patient’s clinical
condition, shows that the patient qualifies as homebound and needs skilled
nursing and/or therapy services. As a
result, payment for these home health claims has been denied.
As the NAHC lawsuit reflects, CMS has
prohibited home health agencies (and their staff) from composing or assisting a
referring physician in completing the narrative statement that is required when
completing a written face-to-face evaluation. This difficult situation is further
complicated by the fact that referring physicians are not held accountable by
CMS if they fail to properly document a face-to-face encounter with a patient
who is being referred for home health services.
Ultimately, if a face-to-face encounter is determined to be
insufficiently documented, payment is withheld or recouped from the home health
agency, not the referring physician responsible for fully and accurately
documenting the face-to-face encounter.
NAHC has further argued that
requiring
a physician to complete a narrative summary in support of a patient’s homebound
status, which also shows a patient’s need for skilled nursing or therapy care, is
beyond what has been authorized by the statute.
As you will recall, under
Section 6407 of ACA (as codified at 42 USC 1395f(a)(2)(C) and 42 USC
1395n(a)(2)(C)) merely provides that a physician must document that a face to
face encounter with the home health care patient was conducted. The statutory requirements passed under the
ACA do not require that a brief summary narrative must be completed.
Nevertheless, when drafting and implementing relevant regulations, CMS included
requirements under 42 CFR 20 424.22(a)(1)(v) which mandate that a physician
include a narrative or other documentation that shows why the patient’s
clinical condition supports that the patient is homebound and needs skilled
nursing or therapy services.
As a final point, NAHC has alleged that HHS
and CMS have violated the due process rights of its member home health agencies
through the issuance of “unclear and ambiguous implementing guidance on
physician documentation.”
V. Relief sought by NAHC:
As relief, NAHC has asked that HHS and CMS be
enjoined from requiring the current face-to-face documentation which goes
beyond what is called for under the ACA.
NAHC is also asking that CMS draft and issue reasonable face-to-face
documentation requirements which allow
agencies acting in good faith to be paid for the home health services
being provided.
NAHC has also asked that retroactive reviews
of summary narratives be suspended until the face-to-face rules could be
clarified and / or revised.
IV. Recommendations:
While we wholly support the NAHC’s efforts
and hope that they prevail in this litigation, it is important for home health
agencies to keep in mind that this will likely be a tough case. There are numerous precedent-setting cases
that have been litigated over the years which have found that administrative
agencies are to be given a wide degree of discretion when it comes to crafting
of implementing regulations and how those regulations are to be
interpreted. As a result, we strongly
recommend that home health agencies endeavor to meet the regulations as they
are currently in place.
If your home health agency has not already
done so, it is imperative that you implement an effective Compliance Plan which
formally incorporates the agency’s heightened requirements for qualifying as a
compliant face-to-face encounter. Your home health agency should also implement
a vigorous internal audit program which reviews each and every face-to-face
encounter form prior to submitting a claim for payment.
Need assistance? Call us for a complimentary
consultation. 1 (800) 475-1906.
Robert W. Liles, Esq., serves as Managing Partner at Liles Parker, Attorneys &
Counselors at Law. Liles Parker attorneys represent health care providers
and suppliers around the country in connection with Medicare audits by RACs,
ZPICs and other CMS-engaged specialty contractors. The firm also
represents health care providers in HIPAA Omnibus Rule risk
assessments, privacy breach matters, State Medical Board inquiries and
regulatory compliance reviews.
Section 6407 of the ACA amended 42
U.S.C.§1395f(a)(2)(C), requiring that:
”[I]n the case of a certification made by a
physician after January 1, 2011, prior to making such certification the
physician must document that the physician himself or herself, or a nurse
practitioner or clinical nurse specialist (as those terms are defined in Section
1861(aa)(5)) who is working in collaboration with the physician in accordance
with State law, or a certified nurse-midwife (as defined in Section 1861(gg) as
authorized by State law, or a physician assistant (as defined in Section
1861(aa)(5)) under the supervision of a physician, has had a face-to-face
encounter (including through use of telehealth, subject to the requirements in
section 1834(m), and other than with respect to encounters that are incident to
services involved) with the individual within a reasonable timeframe as
determined by the Secretary. . . ’’
The enactment of the ACA also resulted in a
similar amendment, governing home health benefits. This amendment to 42 U.S.C. 1395n(a)(2)(C)
required that:
“[I]n
the case of a certification after January 1, 2010, prior to making such
certification the physician must document that the physician, or a nurse
practitioner or clinical nurse specialist (as those terms are defined in
section 1861(aa)(5)) who is working in collaboration with the physician in
accordance with State law, or a certified nurse-midwife (as defined in Section
1861(gg)) as authorized by State law, or a physician assistant (as defined in
Section 1861(aa)(5)) under the supervision of a physician, has had a
face-to-face encounter (including through use of telehealth and other than with
respect to encounters that are incident to services involved) with the individual
during the 6-month period preceding such certification, or other reasonable
timeframe as determined by the Secretary. . .’.
These private
organizations include Medicare Administrative Contractors (MACs), Zone Program
Integrity Contractors (ZPICs), and other private contractors engaged by the
agency to review and audit home health claims to ensure that the services meet
the agency’s documentation requirements.
