Physician Accommodations in CMS’s Face-to-Face Encounter Rules

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(July 21, 2014): As a condition of Medicare payment, the Affordable Care Act (ACA) requires that prior to certifying a patient’s eligibility for the home health benefit, the certifying physician must document that he or an allowed non-physician practitioner (NPP) had a face-to-face encounter with the patient. This requirement ensures that the physician’s order is based on current knowledge of the patient’s condition.

The Centers for Medicare & Medicaid Services (CMS) codified this provision of the ACA into its own rule in 2011. It has since been updated, and is currently facing new proposals to simplify the face-to-face encounter requirement for physicians.

Accommodations Regarding Certification Requirement

Prior to these new proposals, the ACA and CMS rule already included several features to accommodate physician practice. For example, in addition to allowing NPPS to conduct the face-to-face encounter, Medicare permits the physician who attended the patient in an acute or post-acute setting, but does not follow the patient in the community (such as a hospital) to certify the need for home healthcare.

Accommodations Regarding Face-to-Face Encounter

CMS has specified that under certain circumstances, even residents may conduct face-to-face encounters. Under the rule, the certifying physician and allowed NPPs can perform the face-to-face encounter. For patients admitted to home health immediately after an acute or post-acute stay, the physician who cared for them in the post-acute facility and who has privileges at the facility can perform the face-to-face encounter. Since residents do not have privileges, if a resident is not the certifying physician and is performing the face-to-face encounter, he must inform the certifying physician of the encounter through the supervising teaching physician who must have such privileges.

Per the ACA, only Medicare-enrolled physicians can certify home health eligibility. A resident who is not Medicare-enrolled can perform the face-to-face encounter under the supervision of a teaching physician who has privileges at the acute or post-acute facility. The certifying physician must still document the face-to-face encounter, and has the discretion of whether or not to sign the discharge summary or communication documentation indicating that it is to serve as the certifying physician’s face-to-face documentation. The certifying physician may use the discharge summary or referral as documentation of the face-to-face encounter if:

  • The discharge summary/referral meets the documentation requirements for face-to-face documentation; and
  • The discharge summary/referral is clearly titled and dated; and
  • The certifying physician signs and dates the discharge summary/referral, showing that the he received that information from the teaching physician supervising the resident who performed the face-to-face encounter, and that the he is using that discharge summary or referral as his documentation of the face-to-face encounter.

Medicare also allows the face-to-face encounter to occur via telehealth, in rural areas, in an approved originating site.

Accommodations Regarding Documentation

One of the several changes CMS has proposed pertaining to the Medicare Home Health Prospective Payment System (HH PPS) involves eliminating the narrative requirement that accompanied a certifying physician’s documentation of a face-to-face patient encounter. At first glance, this also looks like an accommodation for physicians because it might streamline the certification process. Interestingly, however, this proposed change comes almost exactly one month after the National Association for Home Care & Hospice (NAHC) filed a lawsuit against CMS, challenging CMS’s administration of the physician face-to-face encounter documentation requirements. Specifically, NAHC claims that CMS violated the ACA by requiring that the physician provide a narrative that explains why a patient is home bound and in need of skilled care. NAHC argues that the ACA requires only that the physician document that the encounter occurred. NAHC also alleged that to the extent that CMS can require the physician narratives, CMS violated the Medicare Act and the U.S. Constitution by failing to explain what constitutes "sufficient" narratives.

It will be interesting to see whether NAHC drops the suit in light of CMS proposed changes, or pursues it to get better definition from CMS as to what constitutes sufficient documentation.

Robert W. Liles

Robert W. Liles, Managing Partner at Liles Parker, Attorneys & Counselors at Law, represents health care providers around the country in connection with both regulatory and transactional legal projects. Call Robert at 1 (800) 475-1906 for a free consultation.