(April 22, 2015): Late last month, the Department of Health and Human Services, Office of Inspector General (HHS-OIG) released its 2015 “Compendium of Unimplemented Recommendations” (Compendium). Published annually, the Compendium sets out the top 25 program integrity issues previously identified by HHS-OIG that are expected to “most positively impact HHS programs in terms of cost savings and /or quality improvements”  when ultimately implemented. In past years, HHS agencies responsible for implementing these previously-identified problem areas have typically made significant efforts to address HHS-OIG’s recommendations. Not surprisingly, the a number of Medicare home health program integrity issues are again listed in this “hit list” of risk areas susceptible to fraud and abuse by unscrupulous providers.
I. Home Health Program Integrity Issues Like "Face-to-Face" Examinations Remain a Problem:
As the Compendium sets out, home health program integrity issues remain an ongoing area of concern for HHS-OIG. Under the Affordable Care Act (ACA), the Centers for Medicare and Medicaid Services (CMS) were given a number of expanded authorities and tools designed to assist the agency (and its contractors) in preventing and detecting instances of health care fraud and abuse. Not surprisingly, inadequate and / or incomplete home health documentation remains one of HHS-OIG’s primary concerns, particularly when it comes to the qualifying encounter between a Medicare patient and his or her treating physician. CMS implemented a requirement that a face-to-face encounter, setting out the reason(s) why home health is required, must be properly documented and certified as medically necessary by the patient’s physician. As mandated under the ACA, the requirement to properly document that a compliant face-to-face encounter was conducted by the patient’s certifying physician is a condition of payment.
II. Deficient Face-to-Face Certifications Can Place Your Home Health Agency in Jeopardy:
Unfortunately, the fulfillment of requirement remains elusive. In a number of recent home health cases we have handled, the Zone Program Integrity Contractor (ZPIC) conducting the audit has asserted that the face-to-face certification completed by the patient’s treating physician has either been deficient or, in some case, completely absent from the medical record. As HHS-OIG has noted in its 2015 Compendium, in prior years, CMS oversight of the face-to-face problem has been minimal. HHS-OIG has estimated that approximately $2 billion in payments for home health services should not have been paid due to the fact that the associated face-to-face encounters conducted did not meet Medicare’s documentation requirements.
III. What Should Our Home Health Agency do to Comply with Medicare’s Face-to-Face Requirements?
Not surprisingly, home health agencies have expressed concern and frustration over the face-to-face issue. From a business standpoint, home health agencies rely on referrals of patients from community physicians. If a face-to-face encounter is not fully or properly documented by a certifying physician, any Medicare payments resulting from the referral will likely be denied in an audit by a ZPIC. Agencies are therefore required to carefully review each face-to-face certification for completeness and accuracy prior to admitting a patient.
Despite repeated efforts by CMS to provide clarification to home health agencies (and the certifying physicians they work with) regarding what the agency expects and requires in order for a face-to-face certification to be compliant, clear assistance has been an elusive goal. Within the last month, CMS has published the following guidance on face-to-face certification requirements:
- 03/09/15: “. . . CMS is developing a list of clinical elements within a suggested electronic clinical template that would allow electronic health record vendors to create prompts to assist physicians when documenting the home health (HH) face-to-face encounter for Medicare purposes. Once completed by the physician, the resulting progress note or clinic note would be part of the medical record. The current draft of the electronic clinical template is available in the Downloads section below. Comments can be sent to HomeHealthTemplate@cms.hhs.gov. In addition to developing an electronic clinical template for documenting a home health face-to-face examination, CMS is developing a paper clinical template. To see information about the home health paper clinical template, see home heath (HH) paper clinical template.
- 03/23/15: “In reviewing the transcript, CMS realizes that inaccurate information was provided related to HHA documentation to support certification for home health services. Per 42CFR 424.22 (a) and (c), the patient’s medical record must support the certification of eligibility and documentation in the patient’s medical record shall be used as a basis for certification of home health eligibility. Therefore, reviewers will consider HHA documentation if it is incorporated into the patient’s medical record and signed off by the certifying physician. More guidance will follow regarding the review of home health claims shortly. CMS apologizes for the confusion. (emphasis added). The Open Door Forum scheduled for April 8, 2015 @ 1:00pm (EST) is our last scheduled call to discuss the draft Home Health Templates. An updated version of the draft templates will be posted prior to the Open Door Forum.”
- 03/30/15: “Previously, CMS announced it would conduct an Open Door Forum on the Home Health Electronic and Paper Clinical Template on April 8, 2015 and May 6, 2015 @ 1:00pm (EST) to discuss the draft. We are now combining these calls and will have one final scheduled call on Tuesday April 28, 2015 at 1:30pm (EST). An updated version of the draft templates will be posted prior to the Open Door Forum. We appreciate all the comments we have received and are considering the comments as we revise the draft template. While we will not be replying directly to questions received in the mailbox, we will try to address the most common issues during the Open Door Forum call. Please continue to offer your concerns and suggestions as we appreciate your feedback. The deadline to submit comments is 8:00pm (EST) on May 5th. Comments can be sent [to] HomeHealthTemplate@cms.hhs.gov
And, finally, last week CMS posted the following:
- 04/17/15: “The new version of the draft Home Health Electronic Clinical Template and the new draft Paper Template have been developed. We have removed the old versions to minimize confusion. The next and final Open Door Forum to discuss this draft template will take place on Tuesday, April 28, 2015 at 1:30 p.m. (EST). Please submit comments regarding this draft template via e-mail to HomeHealthTemplate@cms.hhs.gov. We value all of the comments submitted and consider each one, but we cannot guarantee all questions will be addressed during the Open Door Forum call. We will try to address the most common issues/concerns received. CMS will continue to accept comments sent to the e-mail address even after the call. Stakeholders are encouraged to submit questions or comments as quickly as possible. Once a draft of the template is completed, the template will undergo the required Paperwork Reduction Act (PRA) approval process. A release date for the template cannot be determined until the PRA process is complete. Once released in its final approved format, the use of this documentation tool will be voluntary.” (emphasis added).
As reflected in the agency’s multiple posts, the face-to-face issue is a lot more complicated that it may have seemed at first blush, when first included in the ACA as a “condition of payment.”
Home health program integrity audits are expected to remain a focus of ZPICs and other CMS contractors for at least the near future. Unfortunately, part of the ongoing problem faced by home health agencies is that the government's documentation expectations have been a moving target. While we appreciate CMS’ repeated efforts to provide definitive guidance on what the agency and its ZPICs expect in terms of documentation and medical necessity, home health providers and their referring physicians are continuing forward, in the hopes that clear instructions will ultimately be provided on this critical requirement. Unfortunately, the government’s ongoing confusion in this area has not precluded Health Integrity, AdvanceMed and other ZPICs around the country from conducting home health audits and denying claims based on the contractor’s assertion that the required face-to-face certification was deficient.
During this interim period, in order to avoid face-to-face denials, home health agencies should continue to carefully review all certifications completed by referring physicians for completeness and accuracy. While changes to prior face-to-face templates issued by CMS will undoubtedly be forthcoming, it remains the responsibility of each agency to review each certification in light of the guidance CMS has issued thus far and to proceed cautiously with each admission.
Robert W. Liles, JD, MS, MBA serves as Managing Partner at Liles Parker, Attorneys and Counselors at Law. Robert represents home health agencies of all sizes around the country in connection with a full range of ZPIC prepayment reviews, postpayment audits and suspension actions. He also handles home health False Claims Act cases. For a complimentary consultation, please call Robert at: 1 (800) 475-1906.
Department of Health and Human Services, Office of Inspector General (HHS-OIG), “Compendium of Unimplemented Recommendations” Page I, (March 2015). https://oig.hhs.gov/reports-and-publications/compendium/files/compendium2015.pdf