National Association For Home Care And Hospice Files Lawsuit Challenging CMS Rule On Face To Face Encounters

On June 5, 2014, the National Association for Home Care & Hospice (“NAHC”) filed a lawsuit in the United States District Court for the District of Columbia challenging the administration of the physician face-to-face encounter (“F2F”) documentation requirements developed and administered by the Centers for Medicare and Medicaid Services (“CMS”).  According to NAHC,  the F2F regulations have caused a dramatic upsurge in the retroactive denials of home care patient claims under Medicare.  These denials are not based on the CMS allegations that physicians have failed to see patients and certify their care; but because physicians did not supply sufficient paperwork to express a narrative, explanation, or their judgment that the patients are homebound or in need of skilled nursing or physical therapy. 

NAHC asserts that CMS violated Medicare law in three aspects

1.        The authorizing statute only requires that the physician document that the F2F encounter occurred, not that the physician provides a narrative explaining why a patient is home bound and in need of skilled care. 

2.       By failing to provide adequate, reasonable and clear guidance on the standards for compliance, CMS has failed to explain what constitutes ”sufficient” narratives.  This  violates both the United States Constitution and the Medicare Act.

3.       Authorizing  CMS’ contractors to solely use the physician’s narrative to deny payments retroactively, without review  of the entire patient record to determine whether the patient is home bound and in need of skilled care is a further violation of Medicare law.

NAHC has also sought a suspension of retroactive reviews of physician narratives until CMS has revised its rules.  NAHC has filed for a preliminary injunction seeking expedited court review and will seek  summary judgment, asserting that CMS does not have authorization to require the physician narratives.  Concurrently, NAHC will work with members of Congress to seek a legislative remedy.

For further questions, please contact Charles MacKelvie at (312) 235-1117 or cmackelvie@kdlegal.com or Meghan Linvill McNab at mmcnab@kdlegal.com or (317) 808-5863.