AGG Files Amicus Brief on Behalf of the National Alliance for Care at Home and AAHPM

AGG Healthcare attorneys Bill Dombi and Jason Bring and Litigation & Dispute Resolution attorney TC Ogletree filed an amicus (or “friend of the court”) brief on behalf of the National Alliance for Care at Home (the “Alliance”) and the American Academy of Hospice and Palliative Medicine (the “AAHPM”) with the United States Court of Appeals for the Sixth Circuit. The case involves a hospice audit that proceeded through the administrative appeals process to an administrative law judge (“ALJ”) hearing, in which the ALJ denied the hospice’s Medicare reimbursement claims.

For hospice eligibility, Congress specified that a patient is “terminally ill” when one or more physicians certifies that the individual has a medical prognosis that their life expectancy is six months or less if the illness runs its normal course. For each patient in the audit, the hospice provider had obtained the appropriate physician certifications before initiating hospice care. Moreover, at the ALJ hearing, the hospice provider introduced testimony from its medical director — a board-certified hospice and palliative medicine specialist — who testified in support of each patient’s hospice eligibility. By contrast, neither Centers for Medicare and Medicaid Services (“CMS”) nor its auditor introduced any competing physician testimony to counter that of the hospice’s medical director.

Despite the complete absence of any physician testimony to contradict or even question the terminal prognoses of the certifying physicians and the testifying physician, the ALJ discounted the physician-backed evidence and reached his own conclusion that the patients were not terminally ill. The ALJ, who is an attorney and not a clinician, reinterpreted the medical records himself to reach conclusions not shared or supported by any physician input or clinical judgment.

Appealing the ALJ’s decisions (as affirmed by a district court), the hospice provider seeks a ruling from the Court of Appeals that the ALJ erred by substituting his lay opinion for that of the clinical experts — the certifying physicians and the testifying physician. Recognizing the importance of the issue to the entire hospice industry, the Alliance and AAHPM retained AGG to submit a separate brief on their behalf explaining the important policy implications that the court should consider in rendering its opinion. The Alliance and AAHPM urged the court to reverse the ALJ’s decisions and establish a precedent that ALJs may not substitute their opinions for those of physicians on the issue of terminal prognosis. The Alliance and AAHPM asked the court to establish that the ALJ must defer to the expert views of the treating physicians as to a patient’s terminal illness prognosis unless there is objective clinical evidence that contradicts that prognosis.

In their brief, the Alliance and AAHPM explained that the ALJ’s decisions contradict the carefully constructed framework of the hospice benefit enacted by Congress, which places the treating physician at the center of the hospice eligibility inquiry. Despite significant advances in healthcare science, the ability to predict the life expectancy of patients with advanced illness remains an exceedingly difficult undertaking for even the most experienced clinicians and even the most notable of patients. Thus, as Congress instructed, even with the availability of assessment tools and other prognosis-related evaluation techniques, certifying physicians must still revert to their independent “clinical judgment” based on their own experiences with individual patients. Moreover, recognizing that death is impossible to predict accurately, Congress also authorized unlimited renewals of the hospice benefit, with no cap on how long patients can remain on service.

The Alliance and AAHPM recommended that the court reverse the ALJ and order Medicare to cover the denied claims. The ALJ chose to disregard the certification of terminal illness by the patients’ treating physicians along with the confirming testimony of the hospice medical director. In doing so, the ALJ created the risk that patients at the end of life will be wrongly denied appropriate access to palliative care at a time when they need it the most. Without a reversal, hospices will face continual threats that they will be retroactively denied Medicare payment for the care provided, and the Medicare program will lose out on the significant savings brought to the program through timely use of hospice care. The ethical consequences are profound: when clinicians cannot freely counsel patients without fear of reprisal, the core principles of beneficence and autonomy are undermined.

On behalf of the Alliance and AAHPM, AGG will continue to monitor this important case. For more information about the appeal or hospice audits generally, please contact Bill Dombi or Jason Bring.