Court Upholds M.D. Documentation Rule

(CN) - A federal agency's requirement that doctors explain in writing why their Medicare patients are homebound is consistent with the health care reform law, a federal judge ruled.

The dispute stems from the Affordable Care and Patient Protection Act's requirement that a referring doctor "document" his "face-to-face encounter" with a Medicare patient if that provider wants payment for in-home services.

After U.S. Health and Human Services Secretary Sylvia Mathews Burwell announced that doctors must explain in writing why a patient is homebound, the National Association for Home Care & Hospice Inc. filed suit, challenging the requirement.

The trade association, which represents some 6,000 home health agencies allegedly burdened by the "narrative requirement," says the rule exceeds the scope of its authorizing provision of the Affordable Care Act, Fifth Amendment, and Administrative Procedure Act.

The association claims that the department has routinely denied Medicare reimbursement for purportedly insufficient explanations, even when the patient has had a face-to-face encounter with a doctor and otherwise met the required standards for home health services.

Months after the association filed suit, the Department of Health and Human Services eliminated the narrative requirement in late 2014, to "simplify" the face-to-face rules and lessen the burden on doctors and home-health agencies.

Yet the department continues to apply the requirement to Medicare claims filed before the regulatory change, the association says.

U.S. District Judge Christopher Cooper in D.C. dismissed two of the association's three counts for failure to exhaust administrative remedies on Jan. 6.

Both parties later moved for summary judgment on the remaining claim, namely that the narrative requirement is inconsistent with the Affordable Care Act.

Cooper ruled in the department's favor Tuesday.

"Only by mandating some kind of substantive interaction between physician and patient could Congress achieve the goal it has set for face-to-face encounter requirements: to 'reduce the risk of waste, fraud, or abuse' in the Medicare system," Cooper wrote. "The narrative requirement, by requiring the physician to explain why the clinical findings from her face-to-face encounter support that the patient is homebound and needs home-health services, is one possible method of ensuring that the right kind of encounter has taken place."

The narrative requirement clearly aims to limit fraud and abuse, the ruling states.

"Indeed, before it promulgated the challenged rule, HHS stated: 'We believe that our proposed documentation requirements meet the Congress' intent for more physician involvement in determining the patient's eligibility and managing the care plan,'" Cooper wrote. "HHS also expressed its belief 'that the face-to-face encounter statutory provision was enacted to strengthen physician accountability in certifying that home health patients meet home health eligibility requirements' (emphasis added). Especially in light of the substantial deference owed to HHS at this step of the analysis, the court agrees that the agency arrived at a reasonable interpretation that fits with the goals of the statute's documentation requirement." (Parentheses in original).

The association's attorney, William Dombi, said they are "reviewing the decision to determine our next course of action, including the possibility of an appeal."

But the trade group is "very pleased that the court found that Medicare cannot 'second-guess' the patient's physician regarding the content of the face-to-face encounter documentation," Dombi wrote in an email. "Essentially, that finding indicates that Medicare cannot reject a benefit claim based on the sufficiency of the physician narrative. That was the central concern that triggered the lawsuit in the first."

A representative of the Department of Health and Human Services has yet to respond to a request for comment from Courthouse News.

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