Face to face denials – A Legal rebuff to contractors

Face to Face (F2F) brought about brand new challenges to home health.  During the past four years, agencies have undergone torture to determine the best methods of compliance for satisfying the narrative requirement.  However, as many agencies found out by being selected for a RAC, ZPIC or ADR compliance check, simply doing a good job wasn’t enough. Interpretation of the CMS requirement was broad and left to the desertion of the contractor who was handling the request.  This led to the backlog of appeals that most agencies continue to wonder about.


In November, the National Association for Home Care and Hospice (NAHC) finally received some resolution from a lawsuit filed against HHS and CMS.  While the federal judge did not rule in favor of NAHC who sought to have the narrative portion of the F2F removed, the judge did issue some important clarifications on the scope of the narrative.


The judge clarified that grammar, sentence structure and poor word choice was not enough to cause the F2F be disqualified from proving that the patient was in need of services or the encounter did actually occur.  The excerpt from the ruling is as follows, “…denials simply because of poor word choice, grammar, or sentence structure…” A denial is still allowed when the physician does not provide enough clinical evidence to support the need for skilled services or proof of homebound status.


The court’s decision also made an important clarification of home bound status. Physicians do not need to provide a full, detailed explanation of the reasons why home health services are medically necessary. A brief narrative that the clinical findings of the physician support both the homebound requirement and need for skilled services is acceptable.


If your agency has any denials due to F2F narrative issues and you did not appeal, there is relief.  The opinion also included information that contractors were incorrectly denying an entire episode based on the F2F rather than on reviewing the entire patient chart. The judge states that the entire patient chart should also be used in determining the overall need for services and homebound status.


While this is a small positive step forward, agencies still need to make sure F2F documentation is correct and adequate.  Agencies also need to make sure that the entire clinical chart is in compliance and can be used in the event that you do receive a compliance request.


As for the backlog of appeals that is said to be 2-3 years long at this point, there is no update. However, we should expect that backlog to continue as agencies begin to review any ADRs, ZPICs or RACs that were denied based on the F2F of the patient’s episode. As for the timeline of adjudicating and clearing this log, we are unaware, as is most of the industry, on the actual quickness of a resolution.
The best advice for agencies who do receive any type of compliance request and have your response denied is to appeal – and continue to appeal.  An appealed request denial will be added to the current backlog and will hold off your MAC from recouping the funds paid.  Please contact us with any questions you have regarding the process or this new change.