The National Association for Home Care & Hospice (NAHC) hasn’t given up on efforts to push back on Medicare home health payment calculations.
NAHC has re-filled its lawsuit against the U.S. Department of Health and Human Services (HHS). The lawsuit focuses on the home health PDGM budget neutrality adjustment, which imposed both permanent and temporary calculations with a methodology that NAHC believes is noncompliant with the law.
The original lawsuit was filed last summer, and in April the case was dismissed by a federal court in Washington D.C. The case was dismissed on the basis that NAHC did not fully exhaust administrative appeal remedies.
“There’s a particular element the court brought into that which is a provision in regulations, where you seek authorization to expedite judicial review and skip over various steps like the administrative law judge and the appeals council, to be able to go into court quicker,” NAHC President William A. Dombi told Home Health Care News. “While we don’t agree with the judge’s ruling, the option was filing an appeal on that procedural issue, which could take us an extended amount of time to get through the court of appeals – even if we win – or doing what the judge said we should have done, which would take less time, and then go back into the court with a re-filed lawsuit.”
There are a number of factors that made NAHC decide to re-file the lawsuit, according to Dombi.
“No. 1, it will be faster,” he said. “No. 2, we are highly likely to get the same judge, as there’s a related litigation standard in an assignment of cases,” he said.
One of the biggest factors that heavily contributed to NAHC’s decision was the Supreme Court ruling, which upended the Chevron Doctrine.
“[The ruling] addresses the issue of: Do federal courts have an obligation to defer to the interpretation of congressional law when evaluating a federal regulation?” Dombi said. “And that’s exactly what we have here. CMS and HHS interpreted the act of Congress — we think they interpreted it wrong. We are in much better shape now, after the Supreme Court ruling.”
Dombi also noted that the proposed rule, released on Wednesday, is CMS essentially restating its intentions to stick to a methodology that NAHC is challenging as illegal.
In addition to the lawsuit, NAHC is also working with Congressional leaders for a solution.
“We’re doing a lot of work behind the curtain, so to speak, to work with Congressional leadership to put this on their priority agenda,” Dombi said. “We’ve made a lot of progress in moving our issue to be up on the priority list. At the same time, the true measure is, can we get it across the finish line?”
Ultimately, Dombi is optimistic.
“With the combination of this new ruling from the Supreme Court, and some of the things that might be hinted at in the court’s analysis of our case, I think we have a better than even chance of success,” he said. “That’s a high level to give it. Nobody’s going to ever say they’ve got a 95% chance of winning a lawsuit. You’re already behind the eight ball because you’re in court. As it relates to the congressional side, I’d say also we’ve got a better than even chance of getting some solid relief from Congress this year.”
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