According to today’s NAHC Reports, the lawsuit challenging the face-to-face rule is advancing in Federal District Court. The Department of Justice has filed a motion to dismiss with the court arguing that the court does not have the power to hear the case.
The Medicare Motion to Dismiss argues that NAHC failed to exhaust all administrative remedies prior to filing a lawsuit in federal court. In addition, the government motion claims that the NAHC complaint fails to state a cause of action that the court could hear. Over the past 25 years, the federal courts have restricted what’s known as “jurisdiction” on Medicare related matters. Earlier decisions from the US Supreme Court generally require an exhaustion of administrative appeals.
The lawsuit also claims that there is a right to judicial review under the Mandamus Act, which gives federal courts a right to review disputes with government actions when the challenged activity is in direct conflict with the laws passed by Congress. With the face-to-face encounter rule, the lawsuit alleges that Congress specifically limited documentation requirements in a way that does not permit the narrative requirement added by CMS. The law itself only requires that physicians document that the encounter occurred.
NAHC has until October 10 to respond to the government’s motion. Medicare will have the opportunity to reply to the NAHC response thereafter. It is expected that CMS will issue a Final Rule on the proposed changes to the face-to-face documentation requirements prior to the close of the briefing in the lawsuit. While it is anticipated that CMS will continue its plan to eliminate the narrative requirement, the lawsuit is continuing with the design of bringing a favorable resolution on the past-denied claims where Medicare contractors rejected physician narratives as “insufficient.”