An Analysis of CMS’ Final Rule and its Modifications to the Face-to-Face Requirement
November 5, 2014 10:34 AM
The Final Rule issued recently by the Centers for Medicare and Medicaid Services (CMS) includes a myriad of important policy changes in addition to the 2015 payment rates for home health services. Among those important changes is the modification to the rule requiring a face-to-face encounter with a physician as a condition for payment in Medicare. The face-to-face encounter requirement has been burdened with complexity and vagueness since it was originally promulgated in 2011. The difficulties with the rule, particularly the physician narrative requirement, led NAHC to file a lawsuit against CMS in early June. This article reviews the changes to that rule.
Physician Narrative Requirement Eliminated
The Final Rule eliminates the daunting physician narrative requirement beginning with episodes of care that start on January 1, 2015 or later. CMS explains that it is eliminating the requirement “to simplify the face-to-face encounter regulations, reduce burdens for HHAs and physicians, and to mitigate instances where physicians and HHAs unintentionally fail to comply with certification requirements.”
While CMS is eliminating the narrative requirement, it is doing so prospectively only. CMS rejected requests that it rescind the rule retroactive to 2011 and reopen past claim denials that were issued based on insufficient narratives.
In eliminating the narrative requirement, CMS acknowledges that the home care industry had raised concerns that the requirement “contained confusing nuances and reviews were too subjective.” Also, CMS references that the industry expressed “a perceived lack of established standards for compliance that can be adequately understood and applied by the physicians and HHAs.” However, CMS stands by its position that it has provided adequate guidance on the rule.
CMS also references the claim that the narrative requirement is invalid as it is inconsistent with Congressional intent. In response, CMS maintains its argument that the rule “is consistent with the text, structure, and purpose of the statute.”
While it is very welcome that CMS chose to eliminate the physician narrative requirement, the harm done by the rule still needs to be remedied. It is estimated that CMS contractors issued tens of thousands of claim denials based upon an insufficient physician narrative and that those claim denials persist still now. As a result of CMS’s unwillingness to repair the past unwarranted damage that the narrative requirements triggered, NAHC is continuing its lawsuit in federal court.
A Notice of Supplemental Authority has been filed with the federal court outlining the new rule change and its impact on the lawsuit. “The Final Rule should help establish our case. It is now very clear that Medicare has taken a final position on the narrative requirement and it is appropriate for the court to now consider the validity of the original rule and the adequacy of the CMS guidance,” stated William A. Dombi, counsel for NAHC in the lawsuit.
New Requirement on Supporting Documentation
While CMS eliminates the physician narrative requirement beginning January 1, it adds a new requirement that certifying physicians must have sufficient documentation in their own files to support the certification of a patient’s homebound status and need for skilled nursing or therapy services. When CMS proposed to include this new requirement in the Notice of Proposed Rulemaking, NAHC and many others objected, explaining that an HHA has no way to know what is in a physician’s file let alone control it sufficiently to protect itself against a retroactive claim denial.
CMS rejected those protests, but did modify its proposal to mitigate the risks expressed by HHAS nationwide. First, CMS expressly permits HHAs to provide certifying physicians with their records in order to aid the physician in the accuracy and integrity of the certification. If an HHA believes that its documentation supports a patient’s homebound status and skilled care need, providing the certifying physician with that record goes a long way to ensuring that sufficient documentation is in the physician record.
In allowing HHAs to provide physicians with supporting documentation, CMS further explains that, “the certifying physician must review and sign off on anything incorporated into his/her record for the patient that is used to support his/her certification/re-certification of patient eligibility for the home health benefit.” NAHC will be seeking further guidance from CMS as to what is expected in the “review and sign off” standard.
CMS also explains that the information from the HHA “must corroborate the certifying physician’s and/or the post-acute care facility’s own documentation/medical record entries, including the diagnoses and patient’s condition reported on the comprehensive assessment.” The “corroboration” standard is in need of interpretive guidance from CMS.
To accommodate the concerns of HHAs that they do not have control over what is in a physician’s files, CMS establishes a new standard that the physician must supply his/her record to the HHA upon request. However, nothing in the rule addresses whether there are any consequences to the physician who does not supply the requested records.
In the Comment/Response portion of the Final Rule, CMS emphasizes that that existing Medicare guidance “require[s] certifications to be obtained at the time the plan of care is established or as soon thereafter as possible.” (Referencing CMS Pub. 100-01, Ch. 4, sec. 30.1.) “Therefore, it is not acceptable for HHAs to wait until the end of the 60-day episode of care to obtain a completed certification of patient eligibility and supporting documentation from the certifying physician and/or the post-acute care facility (if the patient was directly admitted to home health).”
It appears that while CMS removes a major barrier to care by eliminating the narrative, it then complicates the administration of the benefit by establishing new documentation standards for physicians and new standards on the timeliness of physician certifications. As with other elements of the new rule, NAHC will be seeking clarification and guidance from CMS given that CMS does proclaim that it is simplifying the rule and alleviating burdens with these changes. Certainly, it should be easier for HHAs to obtain compliant certifications earlier than was possible with the narrative requirement that led many HHAs to go back repeatedly to physicians in hopes of getting the magic words that auditors would accept.
HHAs are likely to be looking to technology to aid in achieving efficient compliance with these rule modifications. It can be expected that HHAs will explore electronic physician/HHA portals where the physicians can review the entire record of the HHA and sign off on such.
Face-to-Face Encounter Form
In the Final Rule CMS reiterates its longstanding position that it will not issue a uniform documentation form to be used in the face-to-face encounter certification process by physicians and home health agencies. CMS is pursuing the development of an electronic clinical template that would allow physicians nationwide to document patient eligibility.
CMS also issues a reminder that a certification is still required. It does not need to be a specific form, but it must contain five elements:
The individual needs or needed intermittent skilled nursing care, physical therapy, and/or speech-language pathology services as defined in §409.42(c).
Home health services are or were required because the individual was confined to the home (as defined in sections 1835(a) and 1814(a) of the Act), except when receiving outpatient services.
A plan for furnishing the services has been established and is or will be periodically reviewed by a physician who is a doctor of medicine, osteopathy, or podiatric medicine (a doctor of podiatric medicine may perform only plan of treatment functions that are consistent with the functions he or she is authorized to perform under state law).
Home health services will be or were furnished while the individual is or was under the care of a physician who is a doctor of medicine, osteopathy, or podiatric medicine.
A face-to-face patient encounter occurred no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care, was related to the primary reason the patient requires home health services, and was performed by the certifying physician, a physician, with privileges, who cared for the patient in an acute or post-acute care facility from which the patient was directly admitted to home health, or an allowed NPP defined in §424.22(a)(1)(v). The certifying physician must also document the date of the encounter as part of the certification.
When Certifications ad Face-to-Face Encounters Are Required
CMS finalizes its revision/clarification on which episodes must go through the full process of an initial certification, including OASIS and the face-to-face encounter requirements. The position is that where a patient is discharged with goals met and is readmitted to the HHAs within the initial 60-day episode period, the admission is to be treated as a new start of care requiring the initial OASIS and compliance with the face-to-face encounter requirements. That position includes situations where the patient is admitted for the same condition that triggered the original admission.
CMS acknowledges that such readmissions lead to a Partial Episode Payment (PEP) reimbursement on the original admission, but distinguishes the payment consequence from the certification obligations.
HHAs are strongly encouraged to evaluate their internal certification compliance systems to ensure an appropriate application of OASIS and face-to-face requirements in line with this clarification. CMS estimates that over 800,000 episodes may be affected by this clarification.
Physician Claims for Certification
Despite widespread opposition, CMS finalized its proposal to reject physician claims for certification/recertification payment (G0180 and G0179) when the underlying home health services claim is denied because the certification/recertification of eligibility was not complete or because there was insufficient documentation to support that the patient was eligible.
Overall, the revised face-to-face encounter rule is a positive step for HHAs. The elimination of the narrative requirement removes a virtually insurmountable burden for physicians and HHAs alike. However, the new requirement that a physician maintain sufficient documentation in their patient records to support certifications will need expanded guidance and interpretation from CMS if it is not to end up creating a burden comparable to the narrative. Further, NAHC will continue its lawsuit in hopes of providing a remedy for the past claims denials and ongoing audits on claims prior to January 1, 2015. HHAs are encouraged to remain vigilant in securing adequate narratives from physicians through the end of the year and to pursue appeals on claims denials where warranted.