Federal Court Rules In Favor of Medicare While Restricting Scope of F2F Narrative

U.S District Judge Christopher R. Cooper issued his decision yesterday in the lawsuit brought by the National Association for Home Care & Hospice (NAHC) challenging the validity of the Medicare rule that a physician provide a narrative to document the face-to-face encounter with the patient. Judge Cooper ruled against NAHC and granted “Summary Judgment” to the U.S. Department of Health and Human Services. In his ruling, Judge Cooper found that the face-to-face law enacted by Congress was ambiguous and did not foreclose the interpretation of the word “document” that the Centers for Medicare and Medicaid Services (CMS) established in its regulations. The court determined that the plain language of the law did not foreclose on CMS’s regulatory interpretation.  Much of the case surrounded the meaning of the word “document.”

While the court did not find the F2F regulation invalid, the court ruled that Medicare cannot go beyond the narrative requirement and “second guess the medical judgement of the patient’s physician” regarding the F2F narrative’s content.  This ruling could be helpful in appealing denials that were based on “insufficient documentation.”

Overview by NAHC of court’s decision

While the Court rejected NAHC’s claim that a narrative requirement in the face-to-face physician encounter rule is invalid, the Court’s ruling provides a crucial conclusion that can help home health agencies succeed in winning reimbursement in appeals of claim denials based on an “insufficient narrative.”  Essentially, the court held that while a narrative requirement for documentation is a valid exercise of Medicare’s rule making power, Medicare cannot go beyond that narrative requirement and “second-guess the medical judgment of the patient’s physician” regarding the narrative content. That means that if the physician narrative presents patient clinical findings and explains why those findings support the need for home health services, the documentation requirement is met. Here is the part of the Court’s ruling that provides this important distinction.

Finally, it is important to note that this Court’s analysis would look very different if the rule allowed a Medicare claim reviewer to second-guess the medical judgment of a patient’s physician. For instance, if the rule authorized a reviewer to deny a claim—on the basis of insufficient documentation—simply because she disagreed with the physician’s clinical findings or the physician’s reasoning for why those clinical findings support a need for home-health services, that would go far beyond what the statute allows. HHS’s interpretive authority is limited to determining, within reason, how physicians should document that an appropriate face-to-face encounter actually took place—that is, that an encounter occurred that truly focused on determining whether a patient qualifies for home-health services. In making that determination, HHS chose to require physicians to describe their clinical findings and explain why those findings support the need for home-health services. In the Court’s view, the rule requires only that. To the extent HHS may have veered from that requirement in practice, home-care organizations that have been denied reimbursement on the basis of insufficient documentation are free to contest HHS’s implementation of its rule on a case-by-case basis. (emphasis added).