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By MATTHEW HAY
HHBR Washington Correspondent
WASHINGTON The U.S. Department of Justice last week cleared the path for the National Association for Home Care (NAHC) to join federal attorneys in a lawsuit that pits the Health Care Financing Administration (HCFA; Washington) against several home health beneficiaries represented by the Center for Medicare Advocacy (CMA). Earlier this year, a federal judge certified the case as a class action suit brought by CMA on behalf of the beneficiaries who had been denied home health services. The suit claims that the process for denying Medicare coverage of home health care is unconstitutional.
"This is the first time in my life I have ever considered joining forces with the Department of Justice and HCFA and going in as a co-defendant on behalf of home care," explained NAHC attorney Bill Dombi at the recent National Policy Conference in Washington, DC. But Dombi said that it is a necessary step because, if CMA is successful, home health agencies would be forced to deliver care without reimbursement pending the appeal of cases brought by Medicare beneficiaries.
These appeals could last a year or more, said Dombi, and home health agencies can not afford to do that within the current IPS limits, if at all. "I also don’t think it is very rational to deal with the issue overall," he added.
NAHC also has several other cases pending that could be decided within weeks. The association is awaiting an imminent decision on the "last surviving" interim payment system (IPS) lawsuit, which is currently before the federal District Court in Washington on cross-motions for summary judgment. In that suit, NAHC argued that HCFA violated the Regulatory Flexibility Act (RFA), which requires the Medicare program and other government agencies to undertake an impact analysis for any law that will have a significant impact on regulated entities, and then choose the path which has the lesser impact. NAHC argued that HCFA was required to consider alternative interpretations to the IPS, which could have had a less adverse impact on home health agencies. HCFA argued those alternatives did not exist because the law did not allow that much discretion in implementing the IPS.
"The downside’ to this suit," said Dombi, "is that several weeks ago a federal District Court in Texas decided a similar case against home care."
But he added that if NAHC is successful, it has "great opportunity" in other areas, such as OASIS. Dombi said NAHC believes HCFA has the authority to exempt non-Medicare patients from OASIS. "They don’t have any need for that data in the near term." He also noted that NAHC is pursuing this issue with the Small Business Administration and the Small Business Committees in both the House and the Senate.
Another case before the court for cross-motions on summary judgment is O’Neil vs. Shalala, which attempts to expand the Medicare benefit to disabled individuals not considered homebound because they leave the home frequently for non-medical purposes. NAHC argued that absent home health services these patients would be completely homebound.
"You can not use a post-qualification service to determine a pre-qualification condition," asserted Dombi. "You can’t use the services somebody is seeking reimbursement for to determine they are not eligible for that reimbursement." According to Dombi, there are several million disabled Medicare beneficiaries who could qualify for home health services if NAHC’s argument prevails.
Finally, there is NAHC’s class action lawsuit, which will be filed within the next few weeks, that challenges the recoupment of overpayments under the IPS. This suit points to a Medicare provision that would wave recoupment of overpayments if the provider of services is without fault in receiving those payments.
"HCFA’s position is that the law applies only to overpayments that relate to claims determinations," explained Dombi. "We read the law to say it applies to overpayments regardless of the basis of that overpayment, and a home health agency should be entitled to a determination as to whether they are without fault in receiving the overpayment."
The "classic example," he said, are home health agencies in New England that have yet to be told what their per beneficiary limits are, but who are under IPS and nevertheless receiving recoupment letters.
"It is unfortunate we have to move back in to a litigation mindset, but this is the nature of the times in dealing with the Medicare program," said Dombi.