A U.S. District Court judge listened to oral arguments Aug. 6 in the National Association for Home Care & Hospice’s (NAHC) lawsuit battling the face-to-face requirement.
 
His ruling might take weeks, says Bill Dombi, NAHC’s vice president for law.
 
NAHC’s goal is to seek recoupment for past denials and stop future reviews checking compliance with the narrative requirement. CMS eliminated the narrative requirement for episodes beginning Jan. 1, 2015 or later, yet agencies could continue to receive denials for this requirement based on claims that were filed for episodes prior to then. The lawsuit encompasses claims denials totaling $150 to $200 million, NAHC estimates.
 
HHS, meanwhile, believes the narrative requirement was an acceptable interpretation of Congress’ intent, says Justin Sandberg, an attorney with the U.S. Department of Justice.
 
The Affordable Care Act (ACA) clearly requires documentation that a physician encounter occurred. But when Kathleen Sebelius was secretary of HHS, she and CMS administrator Marilyn Tavenner expanded the face-to-face requirement, telling physicians to provide detailed narratives about why patients are homebound and in need of skilled care, the lawsuit states.
 
In the 2015 PPS final rule, CMS removed the face-to-face narrative requirement. It also made clear within the rule that it expects to see documentation within a patient’s medical record verifying why the patient is eligible for home health services.
 
Dombi argued to Judge Christopher R. Cooper on Aug. 6 that the narrative requirement resulted in “absurd” outcomes. That’s because, Dombi said, auditors ignored the patient’s full clinical record, thus allowing the narrative’s content to trump whether any documentation showed the patient was actually homebound and required skilled care.
 
The word “document” is vital to the case
 
HHS, which is represented by the Department of Justice, points out that the face-to-face requirement in the ACA makes clear that a physician must “document” that he or she — or another health care professional— had a face-to-face encounter with the patient in the required timeframe. The statute doesn’t explicitly address what it means to “document” a face-to-face visit, so Medicare’s narrative requirement, according to the Justice department, was a reasonable interpretation.
 
Requiring physicians to write the reasons why the patient is homebound and has a need for skilled care is a “standard use of the term ‘document,’ ” the defendants argue.
 
There are “myriad” ways to require a doctor to document a face-to-face encounter, Sandberg told Cooper.
 
But Dombi argues that HHS’ interpretation of the word “document” doesn’t make sense.
 
Such an argument from Medicare only would make sense if the word was removed from the sentence and isolated, Dombi told Cooper.