On November 2, 2010, the Centers for Medicare and Medicaid Services (CMS) adopted final regulations requiring that, prior to certifying a patient's eligibility for home health benefits, the certifying physician or a permitted nonphysician practitioner (NPP) perform a face-to-face encounter as provided for by the Patient Protection and Affordable Care Act (PPACA). CMS points to studies supporting the premise that physician involvement with homebound patients within 30 days prior to the start of home health services is correlated with significantly better patient outcomes, and stands by the requirement that the encounter be related to the primary reason that the patient requires home health services. In the final regulation, CMS did provide some relief by expanding significantly the time frame in which a physician certifying a patient's eligibility for home health services under Medicare must document the face-to-face encounter.
Timeframe and Documentation of the Face-to-Face Encounter
The newly established timeframe requires that the certifying physician or a permitted NPP (as discussed below) perform the face-to-face encounter no more than 90 days prior to or 30 days following the start of home health services. This timeframe is a revision of the proposed rule, which required that the face-to-face encounter be performed no more than 30 days prior to or two weeks following the start of home health services. The face-to-face encounter and related documentation must conform to the following:
- The condition for which the patient was being treated in the face-to-face encounter must be related to the primary reason the patient requires home health services;
- The documentation must be a separate and distinct section of, or an addendum to, the certification of need for home health services, and clearly titled. It must also include the date of the encounter and an explanation of why the clinical findings of the encounter support the determination that the patient is homebound and in need of either intermittent skilled nursing services or therapy services. It must be dated and signed by the certifying physician; and
- The certification of need for home health services in which the documentation of the face-to-face encounter is included must be signed and dated by the physician who established the plan of care, and must be obtained at the time the plan of care is established or as soon as possible thereafter.
The face-to-face encounter which occurs within 90 days prior to the start of home health services must be related to the primary reason the patient requires home health services. Otherwise, the certifying physician or NPP must have an additional face-to-face encounter with the patient within 30 days of the start of home health services. The regulations permit the face-to-face patient encounter to occur through telehealth, subject to the list of payable Medicare telehealth services in accordance with the applicable physician fee schedule regulation. Important to note, however, is that the use of telehealth services is significantly limited, and generally requires a homebound patient to be transported to a facility for the face-to-face encounter.1 CMS explicitly rejects expanding the definition of telehealth services in its response to comments. Additionally, while it is not apparent from the text of the regulation, CMS states in the responses to comments that the face-to-face encounter is only required for the initial certification, and not for the subsequent recertifications that the regulations require every 60 days following the commencement of home health services.
Who May Perform the Face-to-Face Encounter
The required face-to-face encounter must be performed by a physician or a permitted NPP. Permitted NPPs, which are often referred to as mid-level practitioners, include nurse practitioners, clinical nurse specialists working in collaboration with the physician in accordance with state law, certified nurse midwives as authorized by state law or physician's assistants under the supervision of the physician. In order to be a permitted NPP, the person in question must be under the supervision of the certifying physician, and the NPP must document the clinical findings of the face-to-face patient encounter and communicate such to the certifying physician.
In response to comments expressing confusion over whether a hospitalist or discharging hospital physician would be capable of performing the required face-to-face encounter and acting as the certifying physician, CMS recognizes that circumstances exist in which a hospital or acute care physician would be the only available physician to certify the patient's home health eligibility, particularly where the patient does not have a primary care physician. In such scenarios, the discharging hospital or acute care physician may document the face-to-face encounter and how the findings of the encounter during the patient's acute stay support home health eligibility, which allows a hospital or acute care physician to serve as the certifying physician for the initial certification required for the start of home health services. CMS expects that the certifying physician in such a scenario would describe the non-acute care physician assuming primary care responsibilities upon discharge, and stresses that a patient must be under the care of a physician to be eligible for the Medicare home health benefit.
Physicians and NPPs should note that they may not perform the face-to-face encounter required as part of a certification if they have a financial relationship with the Home Health Agency (HHA) that will perform the required services, unless that financial relationship meets an exception to the Stark Law. For example, CMS responds quite clearly in its response to comments that HHA medical directors may not act as the certifying physician in the face-to-face encounter. As a result of the comments process, however, CMS has revised the final regulations to clarify that NPPs are subject to the same restrictions against financial interests in an HHA as physicians with regard to home health services for which that NPP or physician has performed the required face-to-face encounter. The proposed rule included a blanket prohibition on employment of NPPs by HHAs; the final rule simply applies the restrictions and exceptions to such that are already in place with regard to physicians. In its response to comments, CMS indicates that it understands these restrictions as imperative, but has revised the final rule to remove any restrictions against financial interests in HHAs held by NPPs, which were harsher than those restrictions applicable to physicians.
CMS's Responses to Comments on the Proposed Rule
In an attempt to control the quality of the physician certifications, some commenters suggested that CMS allow HHAs to provide certifying physicians with a standard form of certification. As certification is a condition of payment, the interest on the part of HHAs in providing a legally sufficient standard form of certification is a legitimate one. CMS rejected the concept of an HHA providing standardized certification language for a physician's signature, stating that it conflicts with the legislative intent to encourage physician involvement in the eligibility determination. CMS clarifies that it is not its intent to penalize an HHA where a physician does a poor job documenting the required encounter. In its response, CMS states that the HHA will not be held responsible for the physician's own medical record documentation, although language specifically excluding HHAs from responsibility for poor physician documentation and recordkeeping is absent from the rule itself.
Our Thoughts
The final regulation no doubt is less onerous than the language of the proposed regulation because it significantly increases the period of time in which the face-to-face encounter may be performed before or after the start of home health services. This is a very positive development for home health providers. Unfortunately, however, the fact remains that this is yet another condition of payment for home health services providers who are already trying to mitigate the increased pressures and impact of downward reimbursement and increased regulatory scrutiny. CMS's decision to implement the face-to-face requirement on January 1, 2011 has created significant logistical challenges for HHAs that are tasked with ensuring physicians and NPPs have sufficient training to comply with the final regulations. Given the administrative burden and the short time period in which the face-to-face encounter must be implemented, we understand that many HHAs are requesting an extended phase-in period to become compliant with the final rules. It remains to be seen whether CMS will accommodate this request.
Footnote
1. As required by the Social Security Act of 1935, as amended, 42 U.S.C. §7 (2006) (the "Social Security Act") telehealth services are only eligible for reimbursement where the site at which services are furnished to the patient via a telecommunications system, or the "originating site" is (I) in an area that is designated as a rural health professional shortage area under section 332(a)(1)(A) of the Public Health Service Act; (II) in a county that is not included in a Metropolitan Statistical Area; or (III) from an entity that participates in a Federal telemedicine demonstration project that has been approved by (or receives funding from) the Secretary of Health and Human Services as of December 31, 2000. Such sites are limited to: (I) the office of a physician or practitioner; (II) a critical access hospital; (III) a rural health clinic; (IV) a Federally qualified health center; (V) a hospital; (VI) a hospital-based or critical access hospital-based renal dialysis center (including satellites); (VII) a skilled nursing facility; or (VIII) a community mental health center. 42 U.S.C.A. § 1834(m)(4)(C)(i-ii) (2006).
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