United States: Hospice Face 2 Face Audit Update

Effective April 2011, CMS implemented the Affordable Care Act requirement that hospices conduct a face to face visit as part of any recertification of any beneficiary in the third or later benefit period.  With the forthcoming hospice and home health RAC auditor, hospices will face increasing audits on face to face compliance.  In this post, Sheppard Mullin examines some of the key requirements of the face to face requirement.

Palmetto reported recently that 49% of its ADR denials for hospice and home health stem from the face to face requirement.  Although the statutory requirement is fairly straightforward, specific regulatory timing and compliance requirements create significant pitfalls for hospice providers and, in turn, opportunity for Medicare contractors to recover alleged overpayments.

MEDPac originated the requirement in an effort to constrain expense by requiring closer doctor scrutiny before recertification. But, Medicare contractors see the face to face requirement as an opportunity to make simple denials of claims.

While prior hospice auditing required complex review of the six month diagnosis (a subjective doctor's determination), the face to face requirements provide contractors with objective, verifiable means to attempt to deny or recoup reimbursement (even where services are medically necessary).

Outside the government context, medical providers and other contracting parties can assert substantial compliance as a defense to small, technical breaches that cause trifling harm.  Wisconsin Dept. of Revenue v. Wrigley Co., 505 U.S. 214, 231 (1992) (noting general applicability of "venerable maxim de minimis non curat lex ("the law cares not for trifles")).

There are also principles in both Federal case law and Medicare policy manuals that suggest that technical violations should not lead to payment forfeitures.  United States v. Bajakajian, 524 U.S. 321 (1998) (setting aside as constitutionally excessive full forfeiture of $230,000 in cash as a civil fine for failure to report cash in excess of $10,000 to customs officials); Medicare Program Integrity Manual, § 3.1 ("When an error has been validated through MR, the corrective action imposed by the MACs should match the severity of the error");Medicare Benefit Policy Manual, §20.1 (allowing face to face to occur up to 2 days late in cases of documented emergency admission; waiving face to face where patients dies within 2 days of admission).

But, Congress, following MEDPac's lead, made the face to face visit a "condition of payment."  Under the statute, the failure to conduct a face to face can be grounds for payment denial.  Medicare contractors will ground payment denials and/or repayment demands not only upon the failure to conduct the face to face but also upon arguably minor variances from the specific face to face requirements.

Here is an updated checklist of the technical requirements that could lead to repayment demands:

  • Timing.  The face to face visit must be conducted in the window 30 days prior to and including the first day of the benefit period.  Because the face to face is to be utilized in recertification, the face to face should occur on or before the day the certification is executed.  If a certification is signed before the face to face, the hospice should redo the certification after the face to face.
  • Who.  Unlike home health where any doctor can conduct the required face to face, in hospice, Medicare only allows a hospice doctor (either employed or contracted to the hospice) or an employed W2 nurse practitioner to conduct the face to face.  Medicare's rational is that: (a) hospices have medical directors on hand; and (b) these doctors/NPs alone have sufficient experience to collect the right information from the face to face.
  • Where.  There is no requirement that the face to face be conducted at the beneficiary's home.  However, Medicare has cautioned that beneficiaries should not be required to travel for a face to face encounter if such travel would constitute any hardship.
  • Attestation/Signature.  The face to face must be signed by the doctor or NP that performs the face to face.  "Immediately above" the signature, there must be an attestation confirming that the face to face was performed, such as: "I certify that I performed a face to face visit with this beneficiary for purposes of assessing potential recertification of hospice care on the date indicated above."
  • Special Requirements for Nurse Practitioner face to face.  Where an NP conducts the face to face, Medicare requires the further attestation that the NP has provided the results of the face to face to the certifying physician (NPs cannot execute the certification).  Because many hospices use a single form for the face to face, this additional NP attestation could constitute a risk point.
  • Face to Face Findings Notes.  There is no specific requirement that doctors/NPs document the detailed findings from the face to face; however, because it is expected that face to face findings will be considered in the certification decision, face to face findings should be documented.  Such findings will bolster a hospice's defense of medical necessity in more traditional medical necessity audits.
  • Date Requirements.  In addition to including date of execution of the face to face attestation, the face to face form must also identify the date of the face to face visit as well as the dates of the upcoming benefit period.  Each of these dates is required by the regulation.  It may also be useful to identify the benefit period by number; but, benefit period should not be considered a substitute for benefit period dates.
  • Certification/Narrative Requirements.  Information gathered at the face to face is intended to be taken account in the subsequent certification decision.  Ideally, the certification narrative should cross-reference such face to face information.  Where a doctor performs the face to face, ideally that same doctor should write the narrative and sign the certification.  Such best practices remove any potential doubt as to whether face to face information has been considered in the decision to recertify.

As can be seen, there are many specific requirements that Medicare has set forth for the face to face.  Given Medicare's forthcoming nationwide RAC specifically for hospice and home health, providers should expect scrutiny on face to face documentation.

Although providers can contest denials that are more technical in nature, it is useful for providers to ensure that they are in full compliance to avoid otherwise lengthy, costly, and uncertain appeals processes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
17 Jan 2019, Webinar, Los Angeles, United States

It’s a familiar story lately – you found the best and brightest to help you grow your company.

31 Jan 2019, Other, Los Angeles, United States

Invites you to join us for a private cooking class hosted by Parties that Cook!

31 Jan 2019, Conference, Los Angeles, United States

The Southern California Association of Corporate Counsel's In-House Counsel Conference

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions