Home Health & Hospice Week

Keep a close eye on this threatening case.

If you think securing physician certification signatures on time is difficult now, a new court decision could make it much harder.

In U.S. ex rel. Marjorie Prather v. Brookdale Senior Living Communities Inc., the Sixth Circuit Appeals Court has ruled against the home health agency, and the ruling may lead to all HHAs being required to secure doc signatures on certifications well before the universally accepted standard the industry uses now — before final claim submission.

Background: In July 2012, Brookdale RN Marjorie Prather filed a whistleblower lawsuit, claiming Brookdale’s HHA violated the regulation that “the certification of need for home health services must be obtained at the time the plan of care is established or as soon thereafter as possible and must be signed and dated by the physician who establishes the plan,” notes the June 11 decision from the Sixth Circuit. Prather was a utilization review nurse who reviewed documentation before related claims were submitted to Medicare, and she found that many of the claims lacked physician cert signatures.

Prather made a number of other claims in her suit, notes Washington, D.C.-based healthcare attorney Elizabeth Hogue. They include that Brookdale paid physicians to review outstanding claims and sign orders; Brookdale re-billed Requests for Anticipated Payment immediately after the RAPs were cancelled to keep the funds while required physician certs remained lacking; and Brookdale submitted claims when required documentation of face-to-face encounters was not obtained until after patients were discharged and/or episodes were complete.

The U.S. District Court for the Middle District of Tennessee in Nashville ruled against Prather in June 2017, finding “Ms. Prather could not identify a single case of Medicare denying a claim when the doctor’s signature was obtained after the claim was submitted for reimbursement,” notes the National Association for Home Care & Hospice.

But in a 2-1 decision, the Sixth Circuit Appeals Court has ruled that “Prather has sufficiently pleaded that the defendants misrepresented their compliance with the material timing requirement in 42 C.F.R. § 424.22(a)(2), and that they acted with ‘reckless disregard’ as to whether they had complied with this requirement and whether this requirement was material,” according to the filing. The Sixth Circuit reversed the district court’s judgment and remanded the case.

However: One of the judges wrote a “vigorous dissent,” note Sidley Austin attorneys Scott Stein and Naomi Igra in online analysis.

“A provider may bill a RAP — but not a final claim — without the physician signatures on file,” Judge David McKeague says in the opinion.

“Although this could be done with a nefarious or reckless motive, it is equally plausible that Brookdale was simply keeping the window open while it collected the signatures and explanations that the regulation requires. Nothing in this behavior inherently suggests that Brookdale was rebilling these claims with the intent to submit final bills that omitted material information.”

Brookdale is now appealing the June 11 decision, and NAHC has filed a friend of the court brief in the case, the trade group says in its newsletter. NAHC is joining Brookdale in requesting an en banc rehearing — “that the entire Sixth Circuit Court of Appeals rule on the case, rather than simply the three-judge panel,” it says.

“NAHC members across the United States and the millions of individuals who receive their services face a risk of severe adverse impact” if the Sixth Circuit Court of Appeals upholds the en banc decision, NAHC President William Dombi writes in the brief. The Medicare physician certification requirements advanced by Ms. Prather would pose “a serious risk to each home health agency” because they differ from long-standing Medicare policy, the trade group argues.

“Thousands of home health agencies across the country cannot operate if they must live in fear of frivolous lawsuits,” NAHC notes.

Note: See the June 11 decision at www.opn.ca6.uscourts.gov/opinions.pdf/18a0110p-06.pdf.