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NAHC Files Brief in Lawsuit that Threatens All Home Health Agencies

Posted on Friday, July 6, 2018 6:10 PM

The National Association for Home Care & Hospice (NAHC) filed amicus curiae (friend of the court) brief in support of Brookdale Senior Living in its appeal of a June 11 decision the overturned a False Claims lawsuit from 2012.

The case was brought a registered nurse who worked as a utilization nurse at Brookdale from September 2011 to October 2012.  This nurse accused Brookdale of submitting claims for home health care for assisted living patients without a physician’s signature on documentation the certified need for home health care, established a plan of care or met with the patients.  The nurse alleges that the company did this to clear up a backlog of about 7000 unbilled Medicare claims worth roughly $35 million.

A U.S. District Court in Nashville, Tennessee originally ruled against the nurse in June 2017, finding that submitting a claim to Medicare before a physician signs documents certifying the need for home health care or the face-to-face encounter is not fraud because the documentation is not relevant to Medicare’s decision to pay the claim. The nurse was unable to provide any documentation of Medicare denying a claim when the doctor’s signature was secured after submitting for reimbursement.

The nurse appealed to the 6th Circuit Court of Appeals and in June a three-judge panel ruled two-to-one in her favor and reversing the District Court opinion.

“NAHC members across the United States and the millions of individuals who receive their services face a risk of severe adverse impact” if the 6th Circuit Court of Appeals upholds the en banc decision, wrote NAHC President William A. Dombi in the brief. “Such a decision has the potential to impact over 6.6 million claims submitted for Medicare payment of home health services provided to over 3.4 million Medicare beneficiaries annually by over 12,000 Medicare participating home health agencies.”

NAHC points out in the brief that the Medicare physician certification requirements advanced by Ms. Prather would pose “a serious risk to each home health agency” because it is different from long-standing Medicare policy regarding certification rules.

“The Medicare administration has had longstanding and continuing knowledge that Medicare claims have been and are continuing to be paid under a standard that requires a signed and dated physician certification prior to final billing in order to comply with” the law,” wrote NAHC. “It has adjudicated claims with that standard since the inception of the Medicare home health benefit in 1967. In fact, Medicare continues to apply that same standard even after this Court’s earlier ruling that created a standard that there must be a ‘valid excuse’ for any delay in securing a physician certification beyond the start of care date, continuing to apply a ‘prior to final billing’ standard in all claims reviews.”

“The nurse needs to allege and prove that Brookdale did not have a signed and dated physician certification prior to submitting the final bill for payment to support her case. That standard of proof is necessary to provide a reasonable balance between the purpose of the False Claims Act and the security of a health care delivery system that must be allowed to rely upon consistent administration of Medicare. Thousands of home health agencies across the country cannot operate if they must live in fear of frivolous lawsuits.”

Source: NAHC Report

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