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National Ass'n for Home Care & Hospice, Inc. v. Burwell

United States District Court, D. Columbia.

January 6, 2015

NATIONAL ASSOCIATION FOR HOME CARE & HOSPICE, INC., Plaintiff,
v.
SYLVIA MATHEWS BURWELL, Secretary, U.S. Department of Health and Human Services, et al., Defendants

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[Copyrighted Material Omitted]

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For NATIONAL ASSOCIATION FOR HOME CARE & HOSPICE, INC., Plaintiff: William Alexander Dombi, CENTER FOR HEALTH CARE LAW, Washington, DC.

For KATHLEEN SEBELIUS, MARILYN B. TAVENNER, Defendants: Justin Michael Sandberg, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

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MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge.

What does it mean to " document" that a meeting occurred? That is the ultimate question in this case. Under the Affordable Care Act, in order for a provider of home health services to receive payment for services rendered to a Medicare patient, the physician who ordered the services must " document" that he or she has had a " face-to-face encounter" with the patient. The Secretary of Health and Human Services issued a regulation interpreting that requirement to mean that the doctor must, in addition to certifying that the encounter took place, explain in writing why the encounter supports the conclusion that the patient is homebound and requires the services in question. This explanation has become known as the " narrative requirement."

The National Association for Home Care and Hospice, Inc. (" NAHC" )--a trade association representing some 6000 home health service providers--brought suit, contending that the Secretary exceeded her statutory authority in issuing the regulation and that the narrative requirement violates the Fifth Amendment rights of its members by making it " nearly impossible" to achieve compliance. The Secretary has moved to dismiss NAHC's complaint for lack of standing and failure to exhaust administrative remedies, as well as for failure to state a claim. The Court finds that NAHC has standing because it has identified at least one member that was denied Medicare payments based on a failure to comply with the narrative requirement. The Court also finds that NAHC has failed to exhaust administrative remedies with respect to all of its claims. The Court will nonetheless assert jurisdiction over NAHC's facial challenge to the Secretary's statutory authority to issue the regulation because it concludes exhaustion of that claim would be futile. The Court will reserve judgment on the merits of NAHC's statutory-authority claim, however, in order to allow the parties an opportunity to brief the issues more fully on cross-motions for summary judgment.

I. Background

Title XVIII of the Social Security Act, known as the Medicare Act, provides medical insurance to individuals eligible for Social Security benefits. See 42 U.S.C. § 402(a). These benefits include payments for health services provided to homebound individuals. See id. § 1395k(a)(2). In the Patient Protection and Affordable Care Act (" ACA" ), Pub. L. 111-148 (2010), Congress amended the provisions of the Medicare Act governing the documentation that providers must submit to receive payment for home health services provided to Medicare patients. The statute previously required that a

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physician certify that home care services " are or were required because the individual is or was confined to his home[.]" 42 U.S.C. § 1395f(a)(2)(C) (governing Medicare Part A benefits); accord id. § 1395n(a)(2)(A) (governing Medicare Part B benefits). Along with that requirement, it now also requires that a physician " document that the physician . . . has had a face-to-face encounter . . . with the individual within a reasonable timeframe as determined by the Secretary [of HHS.]" Id. § 1395f(a)(2)(C); accord id. § 1395n(a)(2)(C). The Secretary implemented this new face-to-face meeting requirement through a regulation requiring that the documentation of the meeting include an explanation, now known as the narrative requirement, " of why the clinical findings of such encounter support that the patient is homebound and in need of [home health services.]" 42 C.F.R. § 424.22(a)(1)(v).

Ordinarily, an unsuccessful Medicare claimant must take a denial of a claim for benefits through the administrative appeals process before filing suit in federal court. Administrative exhaustion of a Medicare claim is a lengthy process. An HHS contractor initially determines whether to approve the claim for payment. 42 C.F.R. § 405.904(a)(2). If payment is denied, the claimant can request a redetermination. Id. If still unsuccessful, the claimant can demand reconsideration by a Qualified Independent Contractor. Id. The claimant then may request a hearing before an Administrative Law Judge, and may appeal the result of that hearing to the Medicare Appeals Council of the Departmental Appeals ...


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