United States: Face-To-Face Requirements: What Pitfalls Lie Ahead For Home Health Agencies?

  • The long-awaited rule on home health face-to-face encounters has been published.
  • OIG recently indicated its intent to focus on the home health industry.
  • Home health agencies can learn from the pitfalls other providers have experienced with the face-to-face requirements.
  • Thorough documentation is required to ensure compliance with both the technical and medical necessity elements of the face-to-face encounter.
  • Compliance programs, including training, should be updated to reflect the face-to-face requirements.

In November 2012, the Centers for Medicare & Medicaid Services ("CMS") issued a long-awaited final rule that clarified statutory requirements that physicians must follow to certify patients as eligible for the Medicare home health benefit.1 In the newly promulgated rule, physicians are required to complete face-to-face encounters with each home health patient at regular intervals and assess the patient's eligibility under Medicare's complex medical necessity guidelines.2 The face-to-face encounter rule and the procedures home health agencies ("HHA") must develop to comply with the rule are fraught with compliance and reimbursement implications for the home health industry. Although challenging, compliance with this rule has become even more important as the Office of the Inspector General ("OIG") recently announced its intent to focus its review efforts on face-to-face encounters by HHAs.3

As noted in the OIG's Work Plan for 2013, which summarizes the OIG's activities for the upcoming fiscal year, the OIG intends to analyze the extent to which HHAs are complying with the face-to-face encounter requirements. In light of the government's ongoing focus on fraud and abuse activities in the health care industry, as well as the OIG's intent to focus specifically on HHAs in this upcoming year, it is vital that HHAs are knowledgeable about the requirements of face-to-face encounters and develop compliance measures to respond effectively to those requirements.

Fundamental Requirements

The first step to complying with the face-to-face encounter rule is to fully understand its technical requirements.4 To certify a patient as eligible for home health services, physicians are required to certify that:

  • Home health services are (or were) needed because the patient is (or was) confined to the home;
  • The patient needs (or needed) skilled services on an intermittent basis;
  • A plan of care has been established and is periodically reviewed by a physician, and
  • The services are (or were) furnished while the patient is (or was) under the care of a physician.

Furthermore, as of January 1, 2011, Medicare requires that a certifying physician document that the physician, or an allowed non-physician practitioner ("NPP"), had a face-to-face encounter with the individual seeking home health services.5 Allowable non-physician practitioners include a certified nurse-midwife, a physician assistant, or a nurse practitioner or clinical nurse specialist working in collaboration with the physician.

Once this encounter occurs, the certifying physician must personally compose a narrative describing the patient's clinical condition as observed during the face-to-face encounter and documenting how the patient's clinical condition supports the patient's homebound status and need for skilled services. The narrative must be signed by the certifying physician, and the certification must include both the date when the physician or NPP saw the patient and the date when the physician signed his/her narrative.6

Potential Pitfalls of the Face-to-Face Encounter

Although the face-to-face encounter requirement is new to the home health industry, the face-to-face requirement is not new to other segments of the health care industry. Indeed, hospice providers have been required to complete face-to-face encounters to recertify patients for hospice services since January 1, 2011.7 Similar to the face-to-face requirements now imposed on HHAs, CMS requires that hospices meet specific requirements when conducting and documenting face-to-face encounters. The Medicare Benefit Policy Manual requires that a hospice physician or hospice nurse practitioner must have a face-to-face encounter with the beneficiary within 30 days of the individual's third benefit period, and up to 30 days prior to every subsequent benefit period. The physician or nurse practitioner is required to document the specific clinical findings found in that encounter and attest that these findings support a life expectancy of six months or less.8

Because hospice providers have been reviewed for compliance with face-to-face requirements since the final rule specific to hospice agencies was finalized in November 2010, HHAs may learn valuable lessons from some of the pitfalls that hospices have experienced with face-to-face documentation. Most notably, hospice providers have experienced an uptick in Medicare contractor audits and resulting claims denials, often based on technical flaws in the face-to-face documentation. In many instances, hospice claims have been denied because of a lack of signature by the certifying physician and/or the lack of a date on the certification. In other instances, hospice claims have been denied because the narrative is not deemed sufficient to justify the patient as appropriate for hospice.

The increasing amount of audits and resulting claim denials not only negatively affect hospices' reimbursement flow but also place an increasing burden on hospices to analyze the cost/benefit ratio associated with appealing such denials. Complicating the hospice's evaluation of whether to appeal is the realization that the administrative appeal process by which providers appeal claim denials is incredibly backlogged, so much so that it may take months, if not a year or more, to appeal denied claims. During this time, interest continues to accrue on the amount sought to be recouped by a Medicare contractor.

Strategies to Reduce the Risk of Such Pitfalls

In light of what hospices have experienced with claims denials based on perceived flaws in the face-to-face encounter documentation, HHAs can implement a number of strategies to reduce the risk of being subject to denials related to face-to-face requirements. For example, to reduce the risk of claim denials resulting from technical documentation errors, it is important for HHAs to thoroughly analyze what Medicare specifically requires for face-to-face encounters and the corresponding documentation of such encounters. This, in turn, will enable HHAs to prospectively evaluate their face-to-face encounter forms to ensure that all appropriate data fields and required language are contained in the forms. That way, when the face-to-face encounter forms are completed, there will be a clear roadmap as to exactly what information should be included on the form. Furthermore, by ensuring that the forms have all required fields and language, the HHA will immediately be able to determine whether the grounds for any denial, particularly if technical, are based on Medicare requirements or possibly an inaccurate interpretation of those requirements by the Medicare contractor.

Additionally, it is important for HHAs to ensure that all staff fully understand the specifics of the face-to-face requirement. To accomplish this, HHAs are urged to update their regular compliance training to specifically address the face-to-face requirement, including documentation of the face-to-face encounter. As part of this compliance training, it may be wise to incorporate any claims denials based on face-to-face requirements into real-time training, so that any flaws in the face-to-face procedures and documentation are corrected immediately to avoid similar errors in the future. It may also be wise for HHAs to provide specific training on the face-to-face requirement and associated documentation to those individuals responsible for appealing claims denials, so that those individuals can easily understand the grounds for denial and evaluate the risks and benefits of appealing a particular claim.

Medical Necessity

In addition to ensuring that HHAs and their staff fully understand the requirements of the face-to-face encounter and corresponding documentation, it is also imperative that HHAs fully understand the medical necessity implications of the face-to-face encounter form. Under the hospice requirements, with regard to medical necessity, Medicare requires that the narrative statement prepared by the certifying physician be based upon the clinical condition of the patient at the time of the encounter.9 If the certifying physician concludes that the patient continues to be eligible for hospice services, the narrative statement must describe, in particular, the clinical conditions of the patient that support the physician's medical determination. Similarly for HHAs, if the certifying physician concludes that the beneficiary is eligible for home health services, the narrative statement must describe, in particular, the clinical conditions that support that the patient is homebound and requires skilled services.10

Although the physician must personally prepare the narratives, HHAs can assist the physician in this process in several ways. For example, the HHAs can ensure that the physician has all of the medical records for that patient immediately available to him/her, along with the clinical documentation from the face-to-face encounter. By doing so, the HHA can ensure that the physician has all clinical information available from which to make an accurate assessment of the patient's eligibility for home health services. HHAs also can provide training to their certifying physicians on the requirements of the face-to-face rule, including the definition of "homebound" and "need for skilled services," so that that the physicians fully understand the clinical conditions for which beneficiaries may be eligible for home health services.

Takeaway Points

Although the new face-to-face encounter rule has compliance and reimbursement implications for HHAs, the strategies described above can help ensure that the complex requirements do not negatively affect the HHAs' overall compliance with Medicare regulations or their reimbursement flow. Knowing the face-to-face encounter rule and its nuances, as well as developing strategies to respond to its requirements, are important for all HHAs, especially now that the OIG has expressed its intention to review HHAs over the next year.

Footnotes

1 Medicare Program; Home Health Prospective Payment System Rate Update for Calendar Year 2013, Hospice Quality Reporting Requirements, and Survey and Enforcement Requirements for Home Health Agencies, 77 Fed. Reg. 67068 (November 8, 2012) (to be codified at 42 CFR pt. 424).

2 Id. at 67106.

3 U.S. Dept. of Health and Human Services, Office of Inspector General, Work Plan Fiscal Year 2013, 11-12. Available at http://1.usa.gov/1aADq9p.

4 42 C.F.R. § 424.22(a).

5 42 C.F.R. § 424.22(a)(v).

6 42 C.F.R. § 424.22(a)(v)(D).

7 42 C.F.R. § 418.22(a)(4).

8 Centers for Medicare & Medicaid Services: Medicare Benefit Policy Manual, Pub. No. 100-02, ch. 9 § 20.1 (Rev. 144, April 06, 2011). Available at http://go.cms.gov/15PGYCV.

9 Id.

10 42 C.F.R. § 424.22(a)(v)(D).

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.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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.

Disclaimer

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.

General

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