On January 9, 2015, Judge Christopher P. Cooper, United States District Judge for the District of Columbia, issued a decision denying the government’s motion to dismiss the complaint in National Association for Home Care & Hospice, Inc. v. Burwell, No. 14-950, 2015 BL 1087 (D.D.C. Jan. 6, 2015), teeing up the issue of whether the “narrative requirement” regulation for Medicare home health service reimbursements is reasonable under the statutory requirement that a patient and a physician have a “face-to-face encounter.” 

The plaintiff, the National Association for Home Care & Hospice, Inc. (NAHC), established standing through a Medicare reimbursement denial of one of its members, and Judge Cooper concluded that waiver of the administrative exhaustion requirement for the statutory authority issue was appropriate because exhaustion would be futile.  Although HHS has essentially eliminated the narrative requirement of the face-to-face encounter provision beginning in 2015 (as we previously reported here), the narrative requirement still applies to claims submitted from 2011 through 2014.  The court is expected to address the merits of whether the Secretary’s narrative requirement was unreasonable in subsequent cross motions for summary judgment.  The full text of the opinion is available here.