The Medicare home health face-to-face brief narrative requirement has been a point of contention for the home health industry since its implementation in 2011. After implementation of the requirement, home health agencies across the country experienced a deluge of denials from Medicare contractors on the basis that the face-to-face brief narratives were “insufficient.” The denials applied inconsistent standards, and as a result, the National Association of Home Care & Hospice, Inc. (NAHC) filed a lawsuit against the U.S. Department of Health and Human Services (HHS) challenging the Department’s authority to enforce the requirements. On Nov. 3, 2015 the United States District Court for the District of Columbia issued an opinion upholding HHS’s authority to require the brief narrative requirement, but also including important language that clarifies the scope of the requirement. 

NAHC challenged the face-to-face brief narrative requirement on the basis that it exceeds the scope of the statutory authority in the Patient Protection and Affordable Care Act (PPACA) because it obligates physicians to do more than simply attest that a face-to-face encounter took place within the required time frame. Invoking the two-step Chevron analysis, the court upheld the regulation, finding that it was a possible interpretation of the PPACA and that HHS offered a “reasoned explanation” that the interpretation is rationally related to the goals of the statute. Yet although the court upheld the regulation, it very specifically stated that it does not allow for “…denials simply because of poor word choice, grammar, or sentence structure;” 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 also stated that its analysis would be very different if the regulation allowed a Medicare contractor to “second-guess the medical judgement of a patient’s physician.”  Specifically, it would be invalid if the regulation permitted a reviewer 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 supported a need for skilled services. The court found that HHS chose to require physicians to document their clinical findings and explain why those findings support the need for skilled services and homebound status – but only that. When Medicare contractors issue denials that in practice exceed that requirement, the court stated that home health agencies are “free to contest HHS’s implementation.”

The court’s opinion provides home health agencies with pending appeals with an important strategic argument to challenge Medicare contractors’ invalid denials. 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 the requirement is that physicians must describe in the brief narrative how the physician’s clinical findings support homebound status and skilled services – not that physicians provide a full description of the medical necessity of the services. However, with Medicare contractors’ invalid technical denials, the entire medical record was not reviewed, and thus home health agencies were 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 regulation and not reviewing the entirety of the record to determine the medical necessity of the services. 

The opinion reaffirmed that as long as the physician’s brief narrative provides his or her clinical findings and describes how those findings support the need for skilled services and the patient’s homebound status, the face-to-face brief narrative meets the documentation requirements.

The conclusion bolsters the home health industry’s position that Medicare contractors act improperly and overstep the regulatory bounds when they deny certification periods based on “inadequate documentation” for egregious and improper reasons.

The ruling marks an important step forward for home health agencies challenging improper appeal denials.

About the Authors

Andrew B. Wachler is the principal of Wachler & Associates, P.C.  He graduated Cum Laude from the University of Michigan in 1974 and was the recipient of the William J. Branstom Award. He graduated Cum Laude from Wayne State University Law School in 1978. Mr. Wachler has been practicing healthcare and business law for over 25 years and has been defending Medicare and other third party payor audits since 1980.  Mr. Wachler counsels healthcare providers and organizations nationwide in a variety of legal matters.  He writes and speaks nationally to professional organizations and other entities on a variety of healthcare legal topic

Jessica Forster is an associate at Wachler & Associates, P.C.  Ms. Forster dedicates a considerable portion of her practice to defending healthcare providers and suppliers in the defense of RAC, Medicare, Medicaid and third party payer audits.  Her practice also includes the representation of clients in Stark, anti-kickback, and fraud and abuse matters.

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