Federal Court Decision Affects Home Health Agencies With Face-to-Face Brief Narrative Denials
Andrew B. Wachler, Esq.
Jessica C. Forster, Esq.
Since its implementation in 2011, the Medicare home health face-to-face brief narrative requirement has been a point of contention for home health agencies nationwide. 1 The brief narrative requirement resulted in a dramatic increase in denials from Medicare contractors on the basis that the face-to-face brief narratives were “insufficient.” As a result of Medicare contractors’ inaccurate application of the brief narrative requirement, the National Association of Home Care & Hospice, Inc. (“NAHC”) filed a lawsuit against the U.S. Department of Health and Human Services (“HHS”) challenging HHS’ authority to enforce the face-to-face brief narrative requirement. In November, the United States District Court for the District Court of Columbia (“the Court”) issued an opinion upholding HHS’ authority to require the brief narrative requirement, but also including important language that clarifies the scope of the brief narrative regulatory requirement. 2
NAHC challenged the face-to-face brief narrative requirement on the basis that the requirement exceeds the scope of the statutory authority in the Patient Protection and Affordable Care Act (“ACA”). NAHC argued the brief narrative requirement requires physicians to do more than simply attest that a face-to-face encounter took place within the required timeframe. 3 Invoking a statutory analysis process, also known as the two-step Chevron analysis, the Court upheld the regulation holding the regulation was a reasonable interpretation of the ACA and that HHS offered a reasoned explanation to support that the interpretation is rationally related to the goals of the statute. Although the Court upheld the regulation, it addressed the issue that Medicare contractors are not permitted apply the regulation over broadly. The Court’s commentary on this issue provides home health agencies with helpful strategic arguments that should be incorporated in Medicare administrative appeals. The Court explained that the regulation does not allow for “…denials simply because of poor word choice, grammar, or sentence structure.” 4 In addition, the Court clarified that the regulation only permits denials for inadequate documentation when a physician has not described clinical findings from the encounter and offered an explanation as to how those findings support the need for skilled services and the patient’s homebound status. The Court stated that its conclusion that the regulation was a proper interpretation of the ACA would be very different if the regulation allowed a Medicare contractor to “second-guess the medical judgement of a patient’s physician.” 5 Specifically, the regulation would be invalid if it allowed a Medicare contractor to deny a claim on the basis of inadequate documentation because it disagreed with the physician’s clinical findings or reasoning that the clinical findings support a need for skilled services. 6 According to the Court, HHS only chose to require physicians to document their clinical findings and explain why those findings support the need for skilled services and homebound status – and only that. 7 Where a Medicare contractor issued denials that in practice exceeded that requirement, home health agencies are “free to contest HHS’s implementation.” 8
Home health agencies with pending appeals should utilize the Court’s language to challenge Medicare contractors’ potentially invalid face-to-face brief narrative denials. In many cases, Medicare contractors applied an expansive interpretation to the brief narrative requirement essentially requiring the physician’s brief narrative to fully describe the patient’s homebound status and the medical necessity of the skilled services. The Court’s opinion correctly reaffirms that physicians are not required to provide a full description of the medical necessity of the services in the brief narrative. However, when Medicare contractors’ issue invalid technical denials, the entire medical record is not reviewed, and thus home health agencies are prevented from presenting the entire record to support the medical necessity of the services. Thus, the Medicare contractors were inappropriately denying certification periods based upon an expansive interpretation of the face-to-face regulation and not reviewing the entirety of the record to determine medical necessity. The Court’s conclusion bolsters the home health industry’s argument that Medicare contractors act improperly apply the regulation when they deny certification periods based on “inadequate documentation” based on an over-expansive interpretation of the regulation. The Court’s conclusion is an important step forward for home health agencies challenging improper appeal denials. Home health agencies should consider incorporating the Court’s conclusion in their Medicare appeals.
1 In November 2014, the Centers for Medicare & Medicaid services (“CMS”) announced through a Final Rule published in the Federal Register that it was eliminating the brief narrative requirement for certification periods beginning on and after January 1, 2015. Although current certification periods are not required to include a brief narrative, a very large volume of face-to-face brief narrative denials are pending in the Medicare administrative appeals process. Therefore, the Court’s opinion in the NAHC case is relevant for those cases pending appeal where a Medicare contractor denied the claim on the basis that the home health face-to-face brief narrative was inadequate.
2 National Association for Home Care & Hospice, Inc. v. Burwell, Case No. 14-cv-00950 (CRC) (November 3, 2015).
3 Id. at 2.
5 Id. at 17.