by Elizabeth E. Hogue, Esq.
The U.S. Court of Appeals for the Tenth Circuit recently ruled in favor of a home health agency, Caring Hearts Personal Home Services, Inc; in Case #: D.C. No. 2:12-CV-02700-CM-KMH. Specifically the Court decided that CMS applied criteria to the retrospective denial of the Agency's claims that were not applicable until after the Agency provided services for which claims were denied. In short, CMS applied the wrong requirements to the Agency. Always good news when an Agency prevails!
It is the language of the Court's decision that will resonate with many providers:
"...The number of formal rules these agencies have issued thanks to their delegated legislative authority has grown so exuberantly it's hard to keep up. The Code of Federal Regulations now clocks in at over 175,000 pages. And no one seems sure how many more hundreds of thousands (or maybe millions) of pages of less formal or 'subregulatory' policy manuals, directives, and the like might be found floating around these days...
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood;...or undergo such incessant changes that no man who knows what the law is to-day, can guess what it will be tomorrow. But what if the problem is even worse than that? What happens if we reach the point where even these legislating agencies don't know what their own 'law' is?...
To support its conclusion that Caring Hearts knew or should've known its documentation was insufficient, CMS doesn't cite or rest on the relevant statutory language as it did earlier on the homebound question. And it's understandable why. The relevant statute states simply that charges must be 'reasonable and necessary,' without offering providers any guidance as to what might and might not qualify, let alone indicating what sort of documentation might be demanded..."
Finally, the Court said:
"This case has taken us to a strange world where the government itself — the very 'expert' agency responsible for promulgating the 'law' no less — seems unable to keep pace with its own frenetic lawmaking. A world Madison worried about long ago, a world in which the laws are 'so voluminous they cannot be read' and constitutional norms of due process, fair notice, and even the separation of powers seem very much at stake. But whatever else one might say about our visit to this place, one thing seems to us certain: an agency decision that loses track of its own controlling regulations and applies the wrong rules in order to penalize private citizens can never stand..."
The judge in this case is certainly "preachin' to the choir" from the point of view of many providers! It is refreshing to learn that some non-providers who enter the "world of Medicare" discover they come away with the same view of it held by many providers!
Elizabeth Hogue is an attorney in private practice in the Metro Washington DC area who specializes in home health care law.
©2016 Elizabeth E. Hogue, Esq. All rights reserved. Reprinted by permission of the author in Home Care Technology Report, October 12, 2016. Further reproduction permitted only with consent of Elizabeth E. Hogue, Esq. Elizabethhogue@ElizabethHogue.net