NAHC President Optimistic About Face-to-Face Ruling

The leader of the National Association for Home Care & Hospice (NAHC) is in a positive frame of mind following recent oral arguments in the organization’s lawsuit against the federal Medicare agency over the so-called “face-to-face” rule.

If NAHC succeeds in pressing its case, home health agencies may be paid a large portion of the $200 million to $250 million in claims that currently are in “limbo,” NAHC President Val J. Halamandaris tells Home Health Care News.

“I think the odds of our winning are very, very good indeed,” Halamandaris says, with the caveat that sometimes judges can issue surprising decisions. U.S. District Court Judge Christopher R. Cooper heard oral arguments in the case on Aug. 6.

Some of Halamandaris’ confidence is rooted in the success NAHC already has had—the association mounted a challenge that got the face-to-face rule’s “narrative requirement” struck down. This was a mandate that physicians not only had to see patients and certify that they were homebound, but provide detailed reasons why as well.

Imposing this requirement exceeded the Centers for Medicare & Medicaid Services’ (CMS) statutory authority, NAHC successfully argued. However, CMS only did away with the narrative requirement prospectively, meaning that a significant number of claims remained unpaid for the period between 2011 and 2014 when the requirement was in effect.

“There needs to be an adjudication of each of these claims on the merits, each one, and we feel confident that most will be paid, the great majority,” Halamandaris says. “That’s what we’re fighting for, the fair treatment on the part of people who went out and delivered that care. They shouldn’t be left in limbo … CMS has never said in absolute terms that the claims are being denied.”

Judge Cooper appeared to be sympathetic to the NAHC arguments, Halamandaris says. The judge had sharp questions for the CMS legal team, according to Halamandaris, and he does not believe the lawyers for the government were able to put together a persuasive case.

CMS does have one thing working in its favor, Halamandaris says: The fact that courts generally like to give agencies the benefit of the doubt when it comes to how they implement regulations. But in this case, it appears clear that CMS itself realizes that the narrative requirement was “inappropriate if not illegal,” the NAHC leader says.

While there is no precise timeline for a ruling, one should be forthcoming in the next few months, perhaps as early as September, Halamandaris says.

Written by Tim Mullaney