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This Gruber Dude

Who is Jonathan Gruber and why should you care?

Dr. Gruber is an MIT healthcare economist who served as a consultant for the ACA (aka Obama Care). He has a very impressive background that includes more than one Ivy League school and he also worked on the healthcare plan in Massachusetts. I think he is a democrat and he openly supports the ACA.

If you know anything at all about Gruber, it is probably that he called you stupid. Technically, he called me stupid, too but I didn’t take offense. He was speaking of the American Voter in an accent heavily laced with sarcasm. These insults were leveed during talks and lectures over the past couple of years and were dug up by some poor individual who was searching for a reason underlying the increase in his family’s insurance premiums. That’s important. Gruber did not stage a press conference to call us stupid.

Are we clear? He is an economist, likely a democrat and supports the ACA. He is fluent in sarcasm and clearly not a politician. He tells the truth as he knows it and economists generally find their truth in numbers.

What Gruber has said could completely unravel the ACA.

When speaking of a tax on high dollar insurance plans, he said, ““The only way we could take it on was first by mislabeling it, calling it a tax on insurance plans rather than a tax on people when we all know it’s really a tax on people who hold those insurance plans.”

On passing the healthcare legislature: “…lack of transparency is a huge political advantage. … Call it the stupidity of the American voter or whatever, but basically that was really, really critical to getting the thing to pass.”

These two quotations are inflammatory to the point of being entertaining. They make good headlines and gossip and tell a story. More important but less entertaining is what Gruber said about individual states that don’t implement an exchange.

“If you’re a state and you don¹t set up an exchange that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill.”

This is the heart of the case going to the Supreme Court. The law suit headed towards the highest court in the land is all about the tax credit offered to the individual states. The law reads that states that do not set up the exchange will not be entitled to tax credits which would affect 37 states. Proponents of the ACA state the language was obviously a typo and that’s not what the law really meant. Jonathan Gruber offered information to the contrary long before the case going to the Supreme Court was a reality.

If the Supreme Court rules that the law means what it says and they have a history of doing so, the only solution would be to change the law. As of November, half of the politicians who voted for the ACA are no longer in place. Oops.

I’m not sure that the citizens of 37 states want to pay for the healthcare of the citizens in other states while their own healthcare expenses increase.

Here’s where it gets really interesting. If the Supremes agree that the law means what it says and congress is not able to come up with a quick fix, how does that affect us?

The Face to Face documentation is a part of the ACA and if the law gets knocked down, were denials for the F2F unconstitutional as well? How about those restrictions on who can own a hospital? Is the hospital re-admission program part of the ACA?

What about all the people in the states who have no exchange? Will providers be paid? Will the insured get taxed?

The Supreme Court never implements anything. Rather, they determine if a law fits neatly into the constitution. If it doesn’t, it really isn’t their problem.

Tomorrow, Dr. Gruber is going before the senate for a grilling hearing. I will be watching and I hope you do, too, as you are able. We’ll be able to hear a little bit of the arguments we can expect to be brought to the Supreme Court. When they rule – probably next July, things could get very interesting.

Just so you know, and all….. I am much more inclined to trust a man with no filter than a politician trying to sell me something too complicated to understand.

A Gross Distortion of Truth

Implemented in 2011 as part of the ACA, the Face-to-Face requirement was mandated as a way to prevent Medicare fraud.  Well known cases of fraud involved agencies paying physicians who have never seen a patient to sign orders.  The best known case is that of Jacques Roy in Texas who defrauded the government of 450M by running an orders signing factory. There are more cases like this but these agencies are in the minority.  Although it is inconvenient at times, it should not be too difficult to satisfy this requirement to prevent additional fraud and abuse.

    1. The documentation must include the date when the physician or allowed NPP saw the patient, and a brief narrative composed by the certifying physician who describes how the patient’s clinical condition as seen during that encounter supports the patient’s homebound status and need for skilled services.
    2. The certifying physician must document the encounter either on the certification, which the physician signs and dates, or a signed addendum to the certification. It may be written or typed.
    3. It is acceptable for the certifying physician to dictate the documentation content to one of the physician’s support personnel to type. It is also acceptable for the documentation to be generated from a physician’s electronic health record.
    4. It is unacceptable for the physician to verbally communicate the encounter to the HHA, where the HHA would then document the encounter as part of the certification for the physician to sign.

I received a copy of a face-to-face document last week and posted it below.  This patient has Parkinson’s disease, congestive heart failure and chronic pain.


As many of you can guess, it was denied.  Nobody doubts that the patient was eligible for services or that the services provided were reasonable and necessary.  The physician saw the patient on the 26th as indicated in the documentation and also daily while he was hospitalized.  Physical therapy was indicated as the reason for services in a section of the document I could not clip without revealing personal health care information.

So why was payment denied for this patient who met eligibility requirements and received much needed covered services?  The physician did  not write a ‘narrative’ because the silly doctor thought it was self evident why someone with diagnoses of pain, Parkinson’s Disease, congestive heart failure who kept falling despite use of an assist device was confined to the home.

This particular document was appealed recently so it was easy to find but I have scores of them in my computer from numerous clients from all over.  And most will be denied.

Medicare states:

The face to face requirement ensures that the orders and certification for home health services are based on a physician’s current knowledge of the patient’s clinical condition

Nobody could possibly have more knowledge of the above patient’s condition than the physician who saw the patient daily in the hospital and then signed a face to face document.  Shame on that physician for failing to use verbs and pretty language to describe the patient better.  Perhaps he thought the document to which the face-to-face encounter was attached would be read.  Wrongo.  As with all statutory denials, the work is over when the claim is denied.  Why take your time to read an entire chart or even the care plan if the claim does not meet billing requirements.

Adding to this are the thousands of face to face encounters that meet all requirements and are denied regardless.  When this happens, an appeal is sent to the QIC (the next level of appeal) and often the QIC finds that the face to face encounter did satisfy all requirements but another reason for denial is found.  This tactic essentially robs the agency of one level of the appeals process.  

After working in post acute care for all these years, my faith lies in home health and hospice.  We have not lived up to our potential as a sub segment of the industry, but we are getting closer every day.  It will be a moot point when congress and other policy makers hear information painting a picture of our industry as blatantly fraudulent and unable to follow even the simplest regulation designed to prevent fraud.  That is my concern.  We will be somehow be left behind as new budgets are developed and our reputation is tarnished.

And to this day, I believe that if we did live up to our potential, congress would be lining up to ask how we wanted to be paid instead of  dismissing us as criminals in scrubs.  We will never live up to our potential as long as education, consulting, inservicing budgets are dedicated to teaching nurses how to review the face to face document to fund payroll.

Most importantly, I want copies of all face to face documents that have been denied if you don’t mind sharing.  You can sanitize them by removing personal health information or I can send you a HIPAA agreement so you can send them as is.

I am losing faith that our government, the one who wants to control 20 percent of our economy with the ACA is being truthful when they state that the purpose of the face-to-face encounter is to combat fraud.  Color me cynical but I see it being bastardized as a way to deny providers payment for covered services rendered to eligible providers. 


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