Home Health & Hospice Week

But the industry's battle is far from over. Home health agencies may get yet another federal court decision backing up their right to compensate physical therapists who they paid per visit.

Like a string of decisions that have gone before, the Provider Reimbursement Review Board ruled in favor of Berks VNA when then-intermediary Wellmark reduced PT compensation costs in the HHA's 1995 and 1996 cost reporting years. Even though Wyomis-sing, PA-based Berks' PTs were bona fide employees, Wellmark reduced their allowable compensation to contractor levels because the VNA paid them per visit.

Berks appealed the $304,000 adjustment to the PRRB and won, according to an Aug. 13 decision, Berks VNA v. BlueCross BlueShield Association/ Cahaba GBA (No. 00-0018 99-3196). But the battle is far from over.

Berks expects the Centers for Medicare & Medicaid Services Administrator to overturn the decision, as so many similar PT compensation decisions have been overturned, president and CEO Lucille Gough tells Eli. The reversal would come despite numerous favorable PRRB decisions and two favorable federal court decisions - one in an appeals court, notes attorney E. Thomas Henefer with Stevens & Lee in Reading, PA.

Gough is holding out hope that CMS finally will give up on trying to enforce its erroneous PT contractor compensation rule for employees. CMS "doesn't seem to recognize the validity of the PRRB or federal court decisions," laments Henefer, who represented Berks in the case.

Berks will wait to see how CMS rules on the PRRB decision, Gough says. But if it reverses, "we probably would proceed to federal court," she expects.

"We certainly believe that we were correct in this," Gough says. And the two aforementioned federal court decisions, In Home Health, Inc. v. Shalala, 188 F.3d 1043 (8th Cir. 1999) and High Country Home Health, Inc. v. Shalala, 84 F. Supp. 2d 1241 (D. Wy. 1999), back up that assertion.

"We went into this from day one knowing [a reversal] was a possibility," Henefer adds. "We expect to proceed."

The amount of Berks' adjustment makes the cost of a federal court battle worth the risk for the agency that served more than 5,300 clients with a $10.5 million budget in 2003, Gough says. And the VNA has already compiled a very well developed record for its PRRB case, so the cost of undertaking a federal court challenge will be lower than for other types of cases, Henefer notes.

But for now, both Gough and Henefer are keeping their fingers crossed that CMS will concede the issue and let the PRRB reversal stand. Berks is a wholly owned subsidiary of Home Healthcare Management Inc., which owns three other non-profit HHAs.