(July 23, 2014): In the July 7, 2014 Federal Register, The Centers for Medicare & Medicaid Services (CMS) published proposed updates to the calendar year (CY) 2015 Medicare home health PPS rates. Notable proposed changes include simplifying the face-to-face encounter regulatory requirements, adjusting the home health quality reporting program and payment reductions, streamlining therapy reassessment timeframes, and limiting the reviewability of civil monetary penalties.
I. Background of the Home Health PPS Rates:
In order to qualify for home health services, a Medicare beneficiary must meet certain requirements. The beneficiary must be under the care of a physician, be receiving services under a plan of care established and reviewed regularly by the physician, and have an intermittent need for skilled nursing care and/or need for physical therapy, speech-language pathology (SLP) services, or continued need for occupational therapy. Furthermore, the beneficiary must be homebound and receive home health services from a Medicare-certified home health agency (HHA).
If a beneficiary meets these conditions, Medicare will reimburse HHAs for the covered services as long as the beneficiary is eligible and the physician certifies that the services are medically reasonable and necessary. These payments will be administered through the Medicare through the HH PPS.
In general, Medicare reimburses providers under the HH PPS on the basis of a national standardized 60-day episode payment rate, national per-visit rates (for episodes with four or fewer visits), and the non-routine medical supply (NRS) conversion factor required under the Affordable Care Act (ACA). Payment rates are based upon data from regularly conducted patient assessments by HHA clinicians required of each HHA.
II. The Proposed Rule Updates the 2015 Home Health PPS Rates:
From the outset, the proposed rule would update the HH PPS rates, including the national standardized 60- day episode payment rates, the national per-visit rates, and the NRS conversion factor under the Medicare PPS for HHAs, effective January 1, 2015.
As required by the ACA, this rule also implements the second year of the four-year phase-in of the rebasing adjustments to the HH PPS payment rates. After phasing in rebasing and other rate adjustments, CMS estimates that the overall economic impact of the proposed rule will be $58 million in decreased payments to HHAs in CY 2015 (a 0.30% decrease).
III. Adjustments to the Face-to-Face Encounter Regulatory Requirement:
One of the biggest proposals outlined by CMS is its efforts to monitor the potential impacts of the ACA mandated face-to-face encounter requirement and make adjustments based on provider feedback.
The Medicare face-to-face encounter rule requires that, prior to certifying a patient’s eligibility for the Medicare home health benefit, the certifying physician must document that he or she, or a permitted non-physician provider (NPP), had a face-to-face encounter with the patient. This encounter must be related to the primary reason the beneficiary requires home health care. It must occur within 90 days before care begins or up to 30 days after care began. Importantly, the certifying physician or NPP must also include an explanation (i.e., narrative) to explain why the clinical findings of the encounter support that the patient is homebound and in need of skilled services.
CMS contends that the face-to-face encounter requirement was implemented, in part, to discourage physicians certifying patient eligibility for the home health benefit from relying solely on information provided by the HHAs when making eligibility determinations and other decisions about patient care. The agency stresses that the goal of this provision was to achieve greater physician accountability in certifying a beneficiary’s eligibility and in established the patient’s plan of care.
However, the face-to-face encounter rule has been the subject of ongoing concerns within the home health industry. For example, the National Association for Home Care & Hospice (NAHC) filed a lawsuit in June 2014 against the U.S. Department of Health and Human Services (HHS) challenging the administration of the physician face-to-face encounter documentation requirements. In particular, the lawsuit challenged that CMS violated the Medicare statute related to the nuances of the physician narrative requirement.
The home health industry also argues that there is a perceived lack of established standards for compliance that can be adequately understood and applied by the physicians and HHAs. Numerous correspondence has been submitted expressing concern over the “extensive and redundant” narrative requirement in the face-to-face encounter form when detailed evidence to support the physician certification of homebound status and medical necessity is available in clinical records. In addition, communication has stated that the narrative requirement was not explicit in the ACA provision requiring a face-to-face encounter as part of the certification of eligibility and that a narrative requirement goes beyond Congressional intent.
The agency recognizes the validity of many of these concerns. In response, CMS is proposing three ways to simplify the face-to-face encounter regulations, reduce the burden for HHAs and physicians, and mitigate instances where physicians and HHAs unintentionally fail to comply with the certification requirements.
First, CMS proposes to eliminate the current narrative requirement. The certifying physician would still be required to certify that a face-to-face patient encounter occurred and document the date of the encounter as part of the certification of eligibility. Nevertheless, in those instances where the physician is ordering skilled nursing visits for management and evaluation of the patient’s care plan, CMS will still require that the physician include a brief narrative that describes the clinical justification of this need as part of the certification/re-certification of patient eligibility.
Second, in determining a patient’s initial eligibility for the Medicare home health benefit, CMS proposes to only consider medical records from the patient’s certifying physician or discharging facility. If the patient’s medical record, used in certifying eligibility, was not sufficient to demonstrate that the patient was eligible to receive services under the home health benefit, payment would not be made for the home health services provided.
Third, CMS is proposing that physician claims for certification/re-certification of eligibility for home health services (not the face-to-face encounter visit) be non-covered service if the HHA claim was non-covered because the certification/re-certification of eligibility was not complete or because there was insufficient documentation to support the patient’s eligibility for the Medicare home health benefit. However, this proposal would be implemented through future “sub-regulatory guidance.”
IV. Home Health Quality Reporting Program and Reductions in Payment:
CMS also wishes to make changes to the Home Health Quality Reporting Program (HH QRP) requirements. The agency wants to adopt quality measures for the HH QRP that will promote more efficient and safer care and take into account input from various resources, such as the Measure Applications Partnership.
Medicare home health regulations require that HHA to submit comprehensive assessments, including the administration of Outcome and Assessment Information Set (OASIS) as a condition of participation for a HHA in Medicare. A failure to submit sufficient OASIS assessments to allow calculation of quality measures, including transfer and discharge assessments, is a failure to comply with the Medicare conditions of participation.
CMS believes that a more explicit performance requirement for submitting OASIS data by HHAs will better meet reporting requirements for the measurement of health care quality. The proposed rule would implement CMS’ highly technical pay-for-reporting performance requirement beginning with all HHA episodes of care occurring on or after July 1, 2015. This requirement would be in accordance with the following schedule:
- For episodes beginning on or after July 1, 2015, an HHA must score at least 70% on the Quality Assessments Only (QAO) metric of pay-for-reporting performance or be subject to a 2% reduction to the HHA’s market basket update for CY 2017.
- For episodes beginning on or after July 1, 2016, and before June 30, 2017, an HHA must score at least 80% on the QAO metric of pay-for-reporting performance or be subject to a 2% reduction to the HHA’s market update for CY 2018.
- For episodes beginning on or after July 1, 2017, and before June 30, 2018, an HHA must score at least 90% on the QAO metric of pay-for-reporting performance or be subject to a 2% reduction of its market basket update for CY 2019 and each subsequent year thereafter.
V. Simplifying Therapy Reassessment Timeframes:
The proposed rule also seeks to simplify the therapy reassessment timeframes.
Effective January 1, 2011, therapy reassessments must be performed on or “close to” the 13th and 19th therapy visits and at least once every 30 days. A qualified therapist, of the corresponding discipline for the type of therapy being provided, must functionally reassess the patient. The measurement results and corresponding effectiveness of the therapy (or lack thereof) must be documented in the clinical record. Additionally, if multiple types of therapy are provided, each therapist must assess the patient after the 10th therapy visit but no later than the 13th therapy visit and after the 16th therapy visit but no later than the 19th therapy visit for the plan of care. When a therapy reassessment is missed, any visits for that discipline prior to the next reassessment are not covered.
Since these therapy reassessment requirements were implemented, providers have expressed frustration regarding the timing of reassessment for multidiscipline therapy episodes. In multiple therapy episodes, therapists must communicate when a planned visit and/or reassessment is missed to accurately track and count visits. Otherwise, therapy reassessments may be in jeopardy of not being performed during the required timeframe, increasing the risk of subsequent visits not being covered.
Under the proposed rule, CMS wants to simplify the requirement so that a qualified therapist (instead of an assistant) from each discipline provides the needed therapy and functionally reassesses the patient at least every 14 calendar days. The requirement to perform a therapy reassessment at least once every 14 calendar days would apply to all episodes, regardless of the number of therapy visits provided.
The agency believes that revising the requirement would make it easier and less burdensome for HHAs to track and to schedule therapy reassessments every 14 calendar days, as opposed to tracking and counting therapy visits, especially for multiple discipline therapy episodes. CMS also believes that this proposal would reduce the risk of non-covered visits so that therapists could focus more on providing quality of care for their patient, while still promoting therapy involvement and quality treatment for all beneficiaries.
VI. Limiting the Reviewability of the Civil Monetary Penalty Provisions:
The last notable change in the proposed rule would add new language to its regulations that would explain the reviewability of a civil money penalty (CMP) that is imposed on an HHA for noncompliance with federal participation requirements.
The new paragraph would provide that when administrative law judges, state hearing officers or higher administrative review authorities find that the basis for imposing a CMP exists, he or she may not set a penalty of zero or reduce a penalty to zero; review the exercise of discretion by CMS or the state to impose a CMP; or in reviewing the amount of the penalty, consider any factors other than those specified in the regulations. Thus, when the ALJ or state hearing officer (or high administrative authority) finds non-compliance supporting the imposition of the CMP, he or she must retain some amount of penalty consistent with the ranges of penalty amounts outlined in the regulations.
Notably, the proposed language for HHA reviews is similar to the current regulatory language governing the scope of review for CMPs imposed against skilled nursing facilities.
VII. Final Remarks:
Ultimately, CMS’ partial concession in the HH PPS is a step in the right direction for the home health industry. However, interested providers and industry leaders should remained actively engaged with CMS and HHS through this proposed rulemaking process so as to ensure that program integrity considerations do not jeopardize access to (or place an undue burden on) an appropriate clinical option for certain Medicare beneficiaries. In particular, any comments to the proposed rule must be submitted by 5:00 pm on September 2, 2014.
As home health regulations remain constantly in flux, you may have questions regarding how the current regulations affect your home health agency. In particular, many HHAs are encountering the negative effects of Recovery Audit Contractors (RACs) and their overly strict scrutiny of documentation requirements during post-payment audits and reviews. As outlined above by the NAHC suit, Medicare-certified home health providers are expressing extreme dissatisfaction with the physician face-to-face encounter documentation requirements. Many such providers are finding that their home health claims are subsequently denied due to inadequate “physician narratives”. The proposed rule is a positive sign that CMS is moving in the right direction on this issue; nevertheless, until the current regulations are changed, home health providers must maintain detailed documentation that meet the requirements for reimbursement.
Should you have any questions related to your current documentation methods, of if you have recently been subject to an additional documentation request and post-payment audit on behalf of a RAC or other Medicare contractor, do not hesitate to give us a call today at 1 (800) 475-1906. We would be more than happy to assist you in ensuring that you receive payment for the services you provide.
Robert Saltaformaggio, Esq., serves as an Associate at Liles Parker, Attorneys & Counselors at Law. Liles Parker attorneys represent health care providers and suppliers around the country in connection with Medicare audits by ZPICs and other CMS program integrity contractors. The firm also represents health care providers in HIPAA Omnibus Rule risk assessments, privacy breach matters, State Medical Board inquiries and regulatory compliance reviews. For a free consultation, call Robert at: 1 (800) 475-1906.