NAHC to File Lawsuit to Stop Pre-Claim

A national association is striking back against the “failed” Pre-Claim Review Demonstration (PCRD) with a plan to file a lawsuit against the Centers for Medicare & Medicaid Services (CMS).

The board of directors of the National Association for Homecare & Hospice (NAHC) has authorized a lawsuit against CMS, which the association says “is currently ravaging our Illinois members and threatening to do the same across the country.” The lawsuit likely will be filed within weeks and will seek an injunction to stop pre-claim in Illinois, William Dombi, NAHC’s vice president for law, told Home Health Care News.

The PCRD has been under way in Illinois since August 3 and was originally scheduled to spread to Florida, Texas, Michigan, and Massachusetts, periodically over the coming months before CMS delayed implementation.

The action is the latest attempt to deter the demonstration, which requires home health care agencies to submit claims to Medicare earlier in the care process, from spreading to other states. NAHC calls the action a “last resort,” but believes CMS has left the association “with no alternative,” according to a post on the association’s website. NAHC has filed a number of lawsuits over the years against CMS, according to Dombi.

NAHC has been extremely vocal that the demonstration is harmful to the home health care industry, causing punishing administrative burdens and delaying care in Illinois. Home health providers across the country and in Illinois have also spoken up about their concerns over the demonstration, with one provider calling it the “worst regulation” he has ever seen. Agencies have also voiced their discontent with CMS.

The Alliance for Home Health Quality and Innovation and the Visiting Nurse Associations of America (VNAA) are two organizations that have reached out to federal agencies over their concerns of PCRD.

“The Alliance and VNAA have repeatedly questioned CMS’s authority to implement the Pre-Claim Review Demonstration project,” the organizations said in a joint statement to HHCN. “We remain strongly concerned with the impact on patient access to high quality home health care.”

NAHC is resolute in its effort to fight back.

“One of the things that happens is that people mistake niceness for weakness,” NAHC President Val Halamandaris said at a policy briefing during the association’s annual meeting in Orlando this week. “Those of us in the home care and hospice community have always tried to lead our lives in a very high standard…sometimes they think they can kick us around. They’re wrong. They need to understand that some of the toughest people you will come across are those who have devoted their lives to caring for the sick and the dying.”

A ‘Grueling Case’

To be successful, the case will have to prove that the demonstrations been harmful not only to home health care providers, but also to patients, according to Dombi, who noted that the lawsuit could be a “grueling case.”

The lawsuit is not the first attempt to stop the demonstration in its tracks. Several lawmakers have already taken a stand against the expansion of the rollout, and even included a one-year halt to the program in a bill that was introduced in Congress earlier this month.

However, NAHC is not betting Congress will act on pre-claim anytime soon, particularly in the midst of a heated election.

“While we continue to seek help from Congress, the outlook for opportunities after the election led us to add the court to the forums we are using to address the reclaim issues,” Dombi told HHCN.

To involve the home health care industry, NAHC plans to lead a tour of Illinois to “publicize the damage pre-claim is doing to home care patients and providers in the state so that it can be brought to an end and not extended to anywhere else in the country,” according to the association’s website post.

CMS Stands Behind Data

While CMS delayed implementing the demonstration to the other four pilot states, the agency has made no moves to stop the model in Illinois. It appears likely, at this point, the demonstration will be implemented in the other pilot states in the future.

CMS recently released data that appeared out-of-sync with reports on the ground in Illinois from home health agencies, many of which have reported sky-high non-affirmation rates for submitted pre-claim review requests.

By comparison, CMS data cited the average affirmation or partial affirmation rates of pre-claim review requests reached 66% during the first eight weeks of the program. As of October 15, 2016, CMS reported that 78% of requests were either affirmed or partially affirmed.

However, CMS did note a “wide variation in the affirm rates,” with some home health agencies receiving a 100% affirmation rate while others have had none of their claims affirmed. Sixty-five home health agencies in Illinois reported that none of their claims were affirmed, according to the latest data from CMS. Just 58 said they had a 100% affirmation rate, with only 18 agencies reporting a 75% affirmation rate.

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CMS declined to comment for this story.

Written by Amy Baxter

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