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Home Health Pre-Claim Review Demonstration Project Update!

September 20, 2016 by  
Filed under Home Health & Hospice

Pre-Claim Review Demonstration(September 20, 2016): On August 3, 2016, the Centers for Medicare and Medicaid Services (CMS) implemented its “Pre-Claim Review Demonstration” project in Illinois.  This demonstration project effectively requires that Illinois home health agencies submit home health claims for review by the Medicare Administrative Contractor (MAC) or face possible penalties (and be forced to have the claim evaluated through the pre-payment process).  As part of the pre-demonstration project, home health agencies are required to submit a complete set of medical records which show that the claim at issue is associated with medically necessary services, meets applicable documentation requirements, qualifies for Medicare coverage and has been coded and billed correctly.  As the demonstration project has been rolled out in Illinois, many home health agencies have experienced problems with the “affirmation” process.  It has been reported that the MAC has allegedly “missed” documentation that has been submitted and that very few of the claims reviewed have been affirmed by the reviewing contractor.  While CMS has not address these specific points, it has acknowledged that additional refinements in the program are required before expansion can continue. Earlier today, CMS announced that the home health pre-claim review demonstration project is temporarily being placed on hold to allow for additional provider education efforts to be conducted.  These provider educational efforts are expected to focus on the main reasons that pre-claim requests have been “non-affirmed” and the documentation that is required to support a home health claim.  Additional information regarding the home health pre-claim demonstration review project is set out below.

I. Background:

Section 402(a)(1)(J) of the Social Security Amendments of 1967[1] authorizes the Secretary for the U.S. Department of Health and Human Services (HHS) to develop demonstration projects that:

“develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established by the Social Security Act.”[2]

The home health pre-claim review demonstration project was initiated by CMS due to the increase over the last three fiscal years of improper payment rates for home health claims. On June 8, 2016, CMS announced in the Federal Register[3] that five states would be involved in this new project to collect information to compile a “baseline estimate of probable fraud in payments for home health care services in the fee-for-service [FFS] Medicare program.” These five states include Illinois, Florida, Michigan, Massachusetts, and Texas. Furthermore, the goal of the project was to assess the use of pre-claim reviews as a means of reducing Medicare FFS expenditures for home health services by reducing improper payments while maintaining or improving the quality of care experienced by the beneficiary.”[4]

II. Pre-Claim Review Demonstration Process:

Under the pre-claim review demonstration process requires home health agencies are strongly encouraged to request a preliminary confirmation of coverage by submitting home health claims and associated clinical documentation, for review after services have begun but before the final claim for services is submitted for payment. The home health pre-claim review process is designed to better help ensure that applicable medical necessity, documentation, coverage, coding and billing rules are met before a claim is submitted to Medicare for payment.

The pre-claim review process does not create new clinical home health documentation requirements. Rather, home health agencies are only required to submit the same information they currently maintain for payment. As mentioned, they will do so earlier in the process, which will help assure that all relevant coverage and clinical documentation requirements are met before the claim is submitted for payment. CMS contends that the pre-claim review process will not delay care to Medicare beneficiaries and will not alter the Medicare home health benefit.

Home health agencies in one of the five demonstration states have been advised that if they do not submit their claims through the pre-claim review process, those claims will be flagged for prepayment review and will essentially treated like an ADR.  Moreover, after the first three months of the program, even if found to qualify for coverage and payment, CMS intends to reduce payment by 25% on each claim that is not submitted through the pre-claim demonstration review process.

III. Conclusion:

The decision by CMS to postpone the implementation of the pre-claim review demonstration in Florida was influenced, in large part, by the advocacy of supportive political and home health industry groups.  The postponement of the pre-claim review demonstration project is a major victory for health care providers in Florida, Michigan, Massachusetts, and Texas. Unfortunately, However, the implementation of the demonstration project is inevitable so providers should continue to prepare for the impact it will have on their health care practice. The exact start dates for Florida, Michigan, Massachusetts, and Texas have yet to be announced, but the dates will be provided on CMS’ website at least 30 days in advance to the implementation. Providers can expect a staggered start beginning with Florida, which provides additional time for preparation.

Pre-Claim Review DemonstrationRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents home health agencies around the country in connection with Medicare audits and compliance matters. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

 

 

[1] 42 U.S.C. 1395b-1(a)(1)(J).

[2] Id.

[3] 81 Fed. Reg. 37598.

[4] “Pre-Claim Review Demonstration for Home Health Services in Illinois,” available at http://www.palmettogba.com/Palmetto/Providers.Nsf/files/Workshop_Home_Health_PCR_Workshop_Series.pdf/$File/Workshop_Home_Health_PCR_Workshop_Series.pdf

[5] See the Palmetto GBA website for helpful resources, available at http://www.palmettogba.com/palmetto/providers.nsf/docsCat/Providers~JM%20Home%20Health%20and%20Hospice~Home%20Health%20Pre-Claim%20Review.

Home Health Pre-Claim Reviews Are Here!

August 23, 2016 by  
Filed under Home Health & Hospice

Pre-Claim Reviews(August 23, 2016):  The home health pre-claim review demonstration project has now started and will be in place for at least the next three years. How did we get to this point?  Unfortunately, this demonstration project was initiated (in large part) based on the fact that  improper payment rate for home health claims has gone 17.3 % in FY 2013  to 51.38% in FY 2014 and 58.95% in FY 2015.

The Center for Medicare and Medicaid Services (CMS) has primarily attributed this increase due to the failure of home health agencies (and their referring physicians) to fully meet documentation requirements to support the medical necessity of the services.

I. Background:

Section 402(a)(1)(J) of the Social Security Amendments of 1967[1] authorizes the Secretary for the Department of Health and Human Services (HHS) to develop demonstration projects that “develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established by the Social Security Act.”  Consistent with this authority, on February 5, 2016, the Centers for Medicare and Medicaid Services (CMS) published notice in the Federal Register that it intended to collect information that would be used by the agency to serve as a baseline estimate of probable fraud in payments for home health care services in the fee-for-service Medicare program.”  This baseline is to be comprised of information gathered from home health agencies, referring physicians and Medicare beneficiaries.

On June 8, 2016, CMS announced in the Federal Register (81 Fed. Reg. 37598) that five states would be part of the new Pre-Claim Review Demonstration project. For these states, preapproval is being required before final home health claims can be submitted.

  • Illinois (originally set to begin August 1, 2016)
  • Florida (no later than October 1, 2016).
  • Texas (no later than December 1, 2016).
  • Michigan (no later than January 1, 2016).
  • Massachusetts (no later than January 1, 2016).

II. What is CMS Telling Medicare Beneficiaries About the Pre-Claim Review Project?

CMS has notified beneficiaries by mail that a “new Pre-Claim Review Demonstration for Home Health Services” was to be initiated in Illinois on August 1, 2016.  (It was ultimately delayed until August 5, 2016). The letter sent to beneficiaries states that “This new demonstration doesn’t change your Medicare home health benefit and coverage requirements.”  CMS further outlines coverage requirements in its attached Fact Sheet, saying that a beneficiary must:

  • Be confined to the home at the time of services. Medicare considers you confined to the home (i.e., “homebound”) if:

(1) There exist a normal inability to leave the home, and

(2) Leaving home requires a considerable and taxing effort.

  • Additionally, one of the following must also be true:

(1) Because of illness or injury, you need the aid of supportive devices (such as a crutch, cane, wheelchair, or walker); the use of special transportation; or the assistance of another person in order to leave your home; or

(2) You have a condition such that leaving your home is medically contraindicated.

  • Be under the care of a physician;
  • Receive services under a plan of care established and periodically reviewed by a physician;
  • Need skilled services, which are services that only a skilled nurse or therapist can safely and effectively provide;
  • Have a face-to-face encounter (or visit) with a doctor or practitioner no more than 90 days before you start home health care or within 30 days after you start home health,

III. What is Palmetto GBA Telling Certifying Physicians and Practitioners?

By letter dated August 11, 2016, Palmetto GBA advised Illinois “Certifying Physician[s] / Practitioner[s]” patients that the Illinois Pre-Claim Review demonstration project for home health services began on August 1, 2016.   Palmetto GBA’s letter to certifying providers further stated that:

“As the certifying physician/practitioner, you are required under the Medicare program to supply the HHA or beneficiary face-to-face encounter visit notes as well as any other documentation that supports medical necessity for the home health care services ordered.”

Palmetto GBA’s letter further notes that to qualify for the Medicare home health care benefit, the patient must:

  • Be confined to the home;
  • Be under the care of a physician;
  • Be receiving services under a plan of care established and periodically reviewed by a physician;
  • Be in need of skilled nursing care on an intermittent basis or physical therapy or speech-language pathology; or have a continuing need for occupational therapy;
  • Have a face-to-face encounter with a medical provider as mandated by the Affordable Care Act for the initial episode of care.

Palmetto GBA’s letter to certifying providers concludes by stating that:

“What You Need to Know

. . . As the certifying physician/practitioner,  you are required under the Medicare program to supply the HHA or beneficiary face-to-face encounter visit notes as well as any other documentation that supports medical necessity for the home health care services ordered.”

Palmetto GBA’s letter concludes by noting: 

“Your Responsibility

If you are the certifying physician/practitioner for a Medicare patient, and plan to  order/refer home health care services, it is imperative that patient medical records include comprehensive clinical assessment data and are submitted to the HHA in a timely manner. Please watch this video on Home Health Face-to-Face  Documentation on Palmetto GBA’s website at www.PalmettoGBA.com/HHH.”

IV. Is Participation in the Pre-Claim Review Project Really Voluntary?

Both CMS and Palmetto GBA state that the demonstration project is “voluntary.”  Is it really voluntaryAs Palmetto GBA’s own website acknowledges:

“Final claims submitted without a Pre-Claim Review request during the first three months of the demonstration from the start date in that state will not be subject to a payment reduction.”

After this three month period:

“If a Home Health Agency in a demonstration state does not submit a Pre-Claim Review request, the final claim will be subject to pre-payment review. . . If no Pre-Claim Review request was submitted and the claim is determined  through pre-payment medical review to be payable, it will be paid with a 25 percent reduction of the full claim amount. . . The 25 percent payment reduction is non-transferable to the beneficiary. . . The 25 percent payment reduction is not subject to appeal.“  (emphasis added).

V. How Will a “Request for Anticipated Payment” (RAP) be Handled?

RAPs are not subject to the Pre-Claim Review process. At this time, no changes in the RAP submission process is anticipated – RAPs should be submitted in the normal process — there will not be any changes in the process and payment of a RAP.  A home health agency must submit a final claim within 120 days of the start of the episode OR 60 days after the paid date of the RAP. Please keep in mind, if a final claim has not been submitted in a timely fashion, the RAP will continue to be automatically cancelled.

VI. How Will a “Low Utilization Payment Adjustment” (LUPA) be Handled?

Home health services for less than 60days will still be subject to Pre-Claim Review, with the following exception:

  • LUPAs occur when four or fewer visits are provided in a 60 day episode. LUPAs are not subject to the Pre-Claim Review process.

VII. How Should Services With Modifier GY be Handled?

Home health services that are not covered by Medicare should be appended with a GY Modifier.  This modifier reflects the fact that the item or service does not meet the definition of a Medicare covered benefit.  Home health services billed with a GY Modifier are not subject to Pre-Claim Review.

VIII. How Should Services With Modifier GA be Handled?

Use of a GA Modifier indicates that that a provider expects an item or service to be denied because it is not reasonable and necessary.  The most common example of this situation would be for home health services that do not appear to meet the requirements under the applicable LCD.   It is appropriate to report this modifier when a beneficiary refuses to sign an ABN.  Importantly, the presence or absence of the GA Modifier does not influence Medicare’s determination for payment.  Therefore, Pre-Claim Review IS STILL REQUIRED for home health services billed with a GA Modifier.

IX. When Will Home Health Services in Texas be Subject to Pre-Claim Review?

Unless delayed (as it was for a few days in Illinois), the Pre-Claim Review process is currently scheduled to apply to all 60-day episodes of care that BEGIN on or after December 1, 2016.  This will include:

  • Initial certifications of care.
  • Recertifications of care. If a beneficiary is discharged and readmitted to the same agency within the same 60-day episode of care, these claims are subject to the Pre-Claim Review process.
  • If a new admission (start of care OASIS) is required, a new Pre-Claim Review request must be submitted by the agency.
  • If a beneficiary transfers to another home health agency during a 60-day episode of care, the RECEIVING home health agency must submit a Pre-Claim Review Please note, even if a beneficiary with a “provisionally affirmed decision” transfers to another home health agency during the same 60-day episode of care, the RECEIVING home health agency must still submit its own Pre-Claim Review request.

X. What Happens When a Claim is Submitted for Pre-Claim Review?

CMS is requiring that Palmetto make a decision and notify an agency within 10 business days (excluding federal holidays) of the initial submission for Pre-Claim Review.   Palmetto will assign a “Unique Tracking Number” (UTN) to each decision.  The decision will advise the submitting agency whether the claim is “affirmed” or non-affirmed.”   Each decision will include:

  • The UTN that has been assigned to the episode / decision.
  • Which HCPCS were affirmed.
  • A detailed explanation of which requirements were not met (if any).
  • Importantly, a provisional affirmation decision is only a preliminary finding that a future claim submitted to Medicare for the service likely meets Medicare’s coverage, coding and payment requirements.
  • A provisional affirmative decision only applies to the episode for which the Pre-Claim Review request was submitted.

XI. What Happens When Some HCPCS Codes Are Affirmed and Some are Denied?

In some instances, you may find that a Pre-Claim Review decision includes both affirmed and non-affirmed HCPCS codes. Should this occur, you can:

  • Submit the final claim with all the HCPCS codes with the UTN and the provisionally affirmed HCPCS will approve for payment and the non-affirmed HCPCS will deny with appeals rights.
  • Resubmit the PCR for the non-affirmed HCPCS codes which would result in a new UTN based on that decision which would then need to be used on the final claim.

XII. What Does it Mean When a Non-Affirmed Decision is Issued by Palmetto?

More often than not, it means that the documentation submitted does not meet one or more of Medicare’s requirements. Each notification of non-affirmation will include:

  • The UTN for the non-affirmed claim.
  • A listing of which HCPCS codes were not affirmed.
  • A detailed explanation of which requirements have not been met in order for the HCPCS codes at issue to qualify to be affirmed.

XIII. Impact of Home Health Pre-Claim Reviews on Small and Mid-Sized Home Health Agencies in Texas.

Your costs to process a claim will be significantly higher for the next three years.  The additional paperwork and effort to submit an episode for Pre-Claim Review are non-compensated and will likely prove challenging for agencies currently facing rising costs and ever-diminishing profit margins.

While CMS has issued deadlines (10 business days / 20 business days) for Palmetto to issue decisions in initial requests and resubmissions, it remains to be seen whether these deadlines will be met.  Home health agencies should anticipate delays, regardless of the goals that have been set for Palmetto. Even if Palmetto is able to process Pre-Claim review requests within its stated deadlines, home health agencies should expect to receive a significant percentage of denials (at least until it becomes more clear what Palmetto expect to see).  These denials will result in cash-flow delays.

Unfortunately, the administrative appeals process remains broken.  If you are unable to obtain a provisionally affirmed decision, you will likely face 3 – 5 years appealing a denial through Medicare’s appeal process.  Unless small and mid-sized agencies work to aggressively improve their compliance with applicable LCD rules, documentation, coverage and payment requirements, we anticipate a number of closures over the next three years.

Pre-Claim ReviewsRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents home health agencies and other health care providers around the country in connection with Medicare, Medicaid and private payor audit actions. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations.

For a free consultation, call Robert at: 1 (800) 475-1900.

 

[1] 42 U.S.C. 1395b-1(a)(1)(J).

CMS Announces Home Health Pre-Claim Review Demonstration Project for Five States

July 5, 2016 by  
Filed under Home Health & Hospice

Pre-Claim Review(July 5, 2016) The Centers for Medicare and Medicaid Services (CMS) has announced a home health pre-claim review demonstration project to be initiated in five states. According to CMS, the purpose of the new project is to prevent improper Medicare payments, enhance quality of care, and deter waste, fraud, and abuse in the Medicare program. This pre-claim review demonstration will impact home health agencies in Illinois, Florida, Texas, Massachusetts, and Michigan.

According to the Operational Guide released by CMS, the general contours of this new project will be as follows:

  • Agencies will continue to submit requests for anticipated payment (RAPs) as usual.
  • At some point prior to submission of the claim for the end of episode (EOE) payment, agencies will be required to submit documentation to the Medicare Administrative Contractor (MAC) that substantiates the beneficiary is homebound, requires intermittent skilled care, and that a physician has certified the beneficiary’s eligibility for home health services.
  • The MAC will render a provisional pre-claim review decision to either affirm or non-affirm coverage of the services within 10 days of receiving the agency’s documentation. The decision letter will contain a rationale for the determination.
  • If the pre-claim review decision is affirmed, the agency can then submit the EOE at the appropriate time and will receive payment as usual.
  • If coverage is non-affirmed upon pre-claim review, the decision letter should contain the reason(s) for that determination. The agency will then have an unlimited number of opportunities to submit additional documentation to further corroborate that the services meet Medicare coverage rules. Those subsequent pre-claim review decisions will either affirm or non-affirm coverage for the claim. MACs will be required to render decisions regarding resubmitted documentation within 20 days of receipt.
  • If an agency submits an EOE after receiving a non-affirmed pre-claim review decision, the EOE will be denied and the RAP will be recouped. The provider will then be able to appeal that denial.
  • CMS has portrayed the pre-claim review process as “voluntary.” However, if an agency submits an EOE without first obtaining an affirmed pre-claim review decision, payment will be immediately stopped and the claim will be subject to pre-payment review. If the reviewer approves the claim upon pre-payment review, the reimbursement for the claim will be reduced 25%. This penalty is non-appealable. If the pre-payment review decision is unfavorable, the RAP will be recouped and the provider may appeal that denial.

CMS and the home health MACs will roll out this demonstration gradually throughout the five target states over the course of six months:

  • Illinois: August 1, 2016
  • Florida: October 1, 2016
  • Texas: December 1, 2016
  • Michigan and Massachusetts: January 1, 2017

In cases where providers do not opt to participate in the pre-claim review process, CMS has stated that the 25% penalty component of the project will be phased in three months after the commencement dates listed above.

According to Palmetto GBA, the home health MAC for Illinois, Florida, and Texas, providers will be able to submit the requested documentation via mail, facsimile, or an online portal.

Home health agencies across the five target states along with other stakeholders have aptly expressed concern as to the need for and potential ramifications of this demonstration project. Agencies are already under enormous pressure, for example, to obtain physician orders within specified timeframes along with appropriate face-to-face documentation from the certifying physicians. The pre-claim review project will only exacerbate those difficulties. In the meantime, agencies will now be expected to continue providing care to beneficiaries without any assurance that they will receive reimbursement for their services.

In our opinion, some of the biggest concerns with this demonstration relate to the timeliness and quality of the pre-claim reviews along with the possibility that the same claims could be subject to multiple audits by different entities.

Although CMS has stated that the MACs will “make every effort” to review pre-claim submissions within 10 days of receipt, there is no assurance they will consistently meet this goal. Unfortunately, the project guidelines announced by CMS do not contain any remedies for providers whose requests may be subject to lengthy processing delays.

The second concern principally relates to the quality of reviews and the adequacy of the explanations provided for “non-affirmed” decisions. Chapter 7 of CMS’ Operational Guide does not contain any requirements as to how detailed those explanations will be. If the MAC’s reasons for “non-affirming” coverage are vague or non-specific, as most unfavorable claim or appeal decisions by Medicare contractors tend to be, then many providers will be left wondering how to improve their documentation or what other records to furnish upon resubmission. This could result in significant delays in reimbursement for many agencies and substantial negative impact on otherwise compliant providers.

CMS has affirmatively stated that claims subject to the pre-claim review process will not be exempt from targeted reviews performed by other entities, such as Zone Program Integrity Contractors. Even the medical review staff at the MAC – the same entity charged with performing the pre-claim reviews – could theoretically initiate targeted medical review of home health agencies. CMS has not indicated whether claims submitted for pre-claim review could also be audited by the Recovery Audit Contractors or the Supplemental Medical Review Contractor. CMS has not offered any justification for the tremendous administrative burdens that serial audits of the same claims could impose on agencies.

In light of this new demonstration project, we recommend that agencies in all of the five states take the following steps to prepare for pre-claim review:

  • CMS has not specified exactly what documentation must be submitted with each pre-claim review request. However, the MACs are currently developing checklists for providers to use when preparing their documentation. Agencies should closely monitor their MAC’s website for this information and review it as soon as it is available. This will likely be an important tool when compiling documentation for submission.
  • Pre-claim review will apply to all home health claims – including recertification episodes – in target states as of the effective dates specified above. For example, initial face-to-face encounter documentation must be submitted with pre-claim review requests for all recertification episodes, even if the face-to-face was performed before the commencement of the demonstration project in that agency’s state. For this reason, providers should not wait to begin reviewing their documentation and searching for ways to improve it. We strongly recommend that providers initiate internal auditing protocols now, irrespective of when the demonstration may begin in their state.
  • Face-to-face documentation will likely play a key role in many pre-claim review decisions. If they have not already done so, we recommend that agencies conduct inservices with their physician referral sources now regarding timeliness and content requirements of face-to-face encounter records. If some physicians consistently refuse to document adequate or timely face-to-face encounters, agencies should consider no longer accepting referrals from those physicians.
  • Agencies should be aware that pre-claim review will likely disrupt their ordinary revenue cycles and begin taking appropriate action.
  • Agencies should regularly review Medicare coverage requirements for home health services as set forth in the Medicare Benefit Policy Manual. Moreover, agencies should familiarize themselves with the local coverage determinations (LCDs) of their MACs, which also contain guidelines for home health care. Palmetto GBA, for example, has LCDs that relate to physical / occupational / speech therapy services and home health care provided to beneficiaries with diabetes mellitus, among other topics.
  • To speed up the pre-claim review process, agencies should submit documentation via the MAC’s secure web portal instead of by mail or fax.
  • We recommend that agencies always utilize the pre-claim review process. The 25% payment reduction is too steep a penalty for non-compliance, particularly since any such claims would still be subject to pre-payment review upon submission of the EOE.

If you have questions regarding this new home health pre-claim review process, you should contact an experienced attorney to discuss additional steps that you could take to minimize the potential negative impact that this initiative will have on your agency.

Pre-Claim ReviewLiles Parker attorneys assist providers across the country with all matters related to claim appeals, reimbursement, enrollment, compliance, and corporate formation / transactions. If you have questions or concerns about a pending Medicare claim appeal, please contact Adam Bird for a free consultation.  He can be reached at:  1 (800) 475-1906.

Home Health HIPAA Violation Costs $239,800!

March 30, 2016 by  
Filed under Home Health & Hospice

HIPAA Violation(March 29, 2016) Lincare, Inc., a provider of respiratory care, infusion therapy and medical equipment to in-home patients, will pay $239,800 in Civil Money Penalties (CMPs) for violating the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule after a HHS Administrative Law Judge (ALJ) ruled in favor of the Office for Civil Rights (OCR).  This is only the second time in its history that OCR has sought CMPs for HIPAA violations and both times the CMPs have been upheld by the ALJ.

OCR’s investigation of Lincare began after an individual, who was the estranged husband of a Lincare employee, complained that she had left behind documents containing the protected health information (PHI) of 278 patients after she had moved out of their residence.  The Lincare employee kept documents containing patient PHI in her car while her husband had keys to the car and left documents behind in the home after moving.  Lincare did not learn the documents were missing until months later, when the employee’s estranged husband reported to Lincare and OCR, that he had the documents containing PHI in his possession.

I.  Lincare Was Alleged to Have Not Properly Safeguard PHI:

Under HIPAA, all covered entities, including home care providers, must protect the privacy rights of the PHI of those it treats and, in response, HHS implemented a “Privacy Rule,” which sets the standards for protecting PHI and requires covered entities to not disclose PHI and “must reasonably safeguard” PHI from “any intentional or unintentional use or disclosure that is in violation of the standards, implementation specifications or other requirements.”

Over the course of the investigation, OCR found that Lincare had inadequate policies and procedures to safeguard patient information that was taken offsite, although its employees, who provide health care services in patients’ homes, regularly removed material from the business premises. Lincare had instructed its managers to maintain copies of the procedures manual “secured” in their vehicles so that company employees would have access to patient contact information if a center office were destroyed or became inaccessible.

The ALJ held that Lincare failed to develop and implement policies and procedures reasonably designed to protect its patients’ PHI while those documents were out of the office.

Under the ALJ’s ruling, all covered entities must ensure that, if their workforce members take protected health information offsite, they have adequate policies and procedures that provide for the reasonable and appropriate safeguarding of that PHI, whether in paper or electronic form.

Lincare claimed that it had not violated HIPAA because the PHI was “stolen” by the individual who discovered it on the premises previously shared with the Lincare employee.  The ALJ rejected this argument, holding that under HIPAA, Lincare “was obligated to take reasonable steps to protect its PHI from theft.”

The court noted that even after Lincare learned of the breach, it took no steps to prevent further disclosure of PHI and its managers “did not seem to recognize they had a significant problem protecting PHI that was removed from the office.”

When asked whether Lincare had considered revising its policies to include specific guidelines for taking PHI out of its offices, the Corporate Compliance Officer responded that it had “considered putting a policy together that said thou shalt not let anybody steal your protected health information.”  Since sarcasm is seldom appreciated in a courtroom, the ALJ did not “consider this a serious response.”

II. Lincare Was Alleged to Have Failed to Develop or Implement Appropriate Policies and Procedures to Prevent the Improper Disclosure of PHI:

The ALJ held that providers must develop and implement adequate policies and procedures reasonably designed, taking into account the size and the type of activities undertaken by the covered entity to ensure compliance and again noted that such policies and procedures must be maintained “in written or electronic form.”

While Lincare had a written privacy policy that addressed maintaining records within the center offices, “no written policy even addressed staff’s protecting PHI that was removed from the offices.”

Lincare even revised its policies after it learned of the unauthorized disclosure but the revisions provided “no guidance to employees required to remove documents from the office’s secured storage space.”  Poorly written policies, as here, that are overly broad and provide “no usable guidance to employees,” do not satisfy the Privacy Rule requirements.

Lincare further claimed that it satisfied the HIPAA requirements because its employees were trained in privacy policies and “understood those policies, practices and procedures.”  The ALJ rejected that contention, holding that “even if training were flawless…staff training does not compensate for missing policies.  In addition to having policies and procedures in place, the covered entity must train all members of its workforce.”

In conclusion, it is imperative for all health care providers that provide services to patients outside of an institutional or clinical setting to develop and implement adequate policies and procedures, in written or electronic form, that are reasonably designed and specifically address the “type of activities,” such as protecting PHI “off-site,” to ensure compliance with the Privacy Rule.

HIPAA ViolationAnthony Cutrona, Esq. is a health law attorney with Liles Parker, Attorneys & Counselors at Law.  Liles Parker has offices in Washington DC, Houston TX, San Antonio, TX, McAllen TX and Baton Rouge LA.  Our attorneys represent home health agencies, physicians, dentists, orthodontists and other health care professionals around the country in connection with government audits of Medicaid and Medicare claims, licensure matters and transactional projects. Need assistance?  For a free consultation, please call: 1 (800) 475-1906.

Medicare’s Home Health Probe and Educate Program is Underway

December 4, 2015 by  
Filed under Home Health & Hospice

Arbitration(December 4, 2015): The Centers for Medicare and Medicaid Services (CMS) has directed its contractors to initiate a home health probe and educate program review process with home health agencies around the country. The focus of this program will be to assess agencies’ compliance with the new face-to-face (F2F) documentation requirements that became effective 01/01/15.

CMS has directed its Medicare Administrative Contractors (MACs) to request records for 5 claims from each home health agency within their jurisdiction to review on a pre-payment basis. This review will apply to claims with dates of service beginning on or after 08/01/15. If the MAC denies one out of the five claims under review, it will send an education letter to the agency summarizing its findings and the process will be complete. However, if more than one of the five claims is denied or if the agency fails to submit documentation in response to the request, then the MAC will send a “detailed” findings letter and repeat the review process with another 5 claims with dates of service on or after the date of the findings letter. The purpose of this second review will presumably be to assess the agency’s compliance with the MAC’s previous education efforts.

As part of the post-review education process, CMS has directed the MACs to offer agency-specific education (to include a one-on-one telephone call with contractor medical review staff) regarding the face-to-face requirements.

Although CMS has not explicitly outlined further consequences for agencies with high error rates determined through this “Probe and Educate” program, it is likely that MACs would continue the review process for delinquent agencies, implement more extensive medical review audits on either a pre-payment or post-payment basis, or refer non-compliant agencies to a Zone Program Integrity Contractor (ZPIC) for investigation. In light of this new ongoing review program, home health agencies should:

  • Continue to obtain supporting F2F documentation on a rolling basis from referring physicians prior to submitting your EOE for the initial certification period. Agencies should not wait until Medicare requests records to obtain F2F documentation from referring physicians.

  • Promptly comply with the MAC’s request for documentation and ensure that all records submitted are complete and accurate. Records should be submitted via the MAC’s online portal or by some trackable method of delivery with signature confirmation.

  • Take advantage of the MAC’s offer to conduct one-on-one education with your agency, even if the review findings are largely positive. As all agencies know, the F2F requirement is extraordinarily vague, and agencies should always take advantage of educational opportunities offered by CMS and the contractors.

  • Contest any and all improper claim denials in the administrative appeals process.

Although the home health probe and educate reviews are, by definition, intended to be educational in nature, they could potentially result in serious consequences for non-compliant agencies. If a MAC has attempted to educate an agency regarding the F2F requirements and a subsequent audit by a MAC or another CMS review contractor determines that the agency has failed to adhere to the previous educational intervention, this could set the stage for an extrapolated overpayment assessment or a payment suspension.

Liles Parker attorneys can assist you with your home health probe and educate obligations.  We also represent home health agencies across the country with all matters related to reimbursement, enrollment, compliance, and corporate formation / transactions. If you have questions or concerns, please contact Adam Bird for a free consultation.

Bird,Adam-WebAdam Bird is a health law attorney with the firm, Liles Parker, Attorneys & Counselors at Law.  Liles Parker has offices in Washington DC, Houston TX, McAllen TX and Baton Rouge LA.  Our attorneys represent home health agencies, hospices and other health care professionals around the country in connection with government audits of Medicaid and Medicare claims, licensure matters and transactional projects.  Need assistance?  For a free consultation, please call: 1 (800) 475-1906.

Medicare’s New Face-to-Face Rules Must be Implemented

October 15, 2015 by  
Filed under Home Health & Hospice

Medicare's new face-to-face rules must be implemented and followed.(October 15, 2015): Many agencies have expressed relief that, effective January 1, 2015, the Centers for Medicare and Medicaid Services (CMS) mostly eliminated the narrative component of the face-to-face (F2F) requirement.[1] As most agencies across the country readily understand, the narrative rule was hopelessly vague and not interpreted or applied consistently by the Medicare contractors. Unfortunately, the new version of the face-to-face regulation may not afford agencies the relief from improper claim denials that they have been hoping for.  Medicare’s new face-to-face rules must be properly implemented and documented. As a recap, the elements of the new face-to-face requirement are as follows:

 

  • The encounter must be performed by an “allowed” type of provider (e.g. certifying physician, physician who cared for the patient in an acute / post-acute setting, physician assistant, nurse practitioner, etc.).

  • The encounter must still be performed 90 days before the start of care (SOC) or 30 days after SOC. In a case where the physician orders home health for a new condition that was not apparent during an encounter performed 90 days prior to SOC, a new encounter must be performed to address that condition within 30 days after SOC.

  • The records of the certifying physician or the physician who cared for the patient in an acute or post-acute setting must corroborate the patient’s homebound status and need for intermittent skilled services. The records must also validate that the encounter occurred within the appropriate timeframe, was performed by an “allowed” type of provider, and was related to the primary reason why the patient was admitted to home health.

  • An agency may provide information to the physician for incorporation into his / her medical records that substantiates a patient’s homebound status and skilled need. However, the physician must sign off on this information, incorporate it into his / her medical records, and the information must be consistent with and supported by the entries in the physician’s own records.

  • Physicians are required to provide the supporting documentation of the face-to-face encounter to the home health agency and / or CMS upon request.

As many agencies already understand, however, Medicare’s new face-to-face rules may end up being just as problematic as the older version of the rules. Ultimately, the face-to-face requirement is a significant burden on agencies because it places the validity of the agency’s claim and its reimbursement in the hands of a separate, independent physician. And as most agencies will readily attest, it is oftentimes difficult enough to persuade physicians to timely date and sign orders, must less write (or re-write, as the case may be) medical record entries to confirm the eligibility of a patient for home health services. Although CMS has stated that physicians who demonstrate a pattern of refusing to comply with this new rule may be subject to certain consequences, those penalties – such as denial of the claim submitted by the physician to bill for the face-to-face encounter or the initiation of a physician-specific probe review by a Medicare contractor – are not nearly as severe as those potentially faced by the home health agency, particularly in cases involving payment suspensions or extrapolated overpayments.

In addition, although CMS has provided some examples of face-to-face records that it would considerable acceptable, the new “supporting documentation” component of the rule is just as vague as the narrative requirement. This new standard may be subject to just as much inconsistent interpretation as the old rule.

Experience has shown that the Medicare contractors are willing to take advantage of the vague nature of the face-to-face requirement in order to deny otherwise appropriate claims for home health services. Home health agencies must therefore be proactive in working to achieve effective compliance with the face-to-face rule. Here are some tips for agencies that may be struggling with the implementation of this new rule:

  • Conduct an inservice with your referral sources regarding this new requirement. This will be a great opportunity provide physicians with valuable resources – such as a “cheat sheet” that summarizes the major elements of the rule and examples of correct face-to-face documentation.

  • Conduct periodic re-training with physicians as appropriate. Don’t expect that they will remember all of the different parts of this potentially complicated rule after just one inservice.

  • The face-to-face documentation must be complete before you bill the end of episode (EOE) claim to Medicare. So don’t be afraid to ask physicians to add late entries to their documentation in order to substantiate homebound status and skilled need, if appropriate, before you bill. Remember that any such amendments / corrections must comply with applicable Medicare requirements for late entries. Excessive or inappropriate late entries may subject physicians to increased scrutiny, audits, or investigations.

  • Obtain face-to-face documentation from physicians before you bill every applicable final claim to Medicare. Do not simply hope that the physicians are documenting the face-to-face encounters appropriately. In addition, agencies may find that physician documentation is lost or unavailable if they are subject to a post-payment audit several years after the claims were initially paid.

  • Consider no longer accepting referrals from physicians who refuse to document face-to-face encounters correctly.

These basic steps should help your agency to achieve and maintain ongoing compliance with the new version of the face-to-face regulation. Once again, it is absolutely imperative that you take proactive measures to ensure that your claims will not be subject to denial simply because a referring physician may not have appropriately documented a face-to-face encounter.

Liles Parker attorneys have extensive experience assisting agencies across the country with compliance programs and government audits / investigations. Contact Adam Bird for a free consultation if you have a question or concern about any laws, regulations, or policies regarding home health services.

Bird,Adam-WebAdam Bird is a health law attorney with the firm, Liles Parker, Attorneys & Counselors at Law.  Liles Parker has offices in Washington DC, Houston TX, McAllen TX and Baton Rouge LA.  Our attorneys represent home health agencies, hospices and other health care professionals around the country in connection with government audits of Medicaid and Medicare claims, licensure matters and transactional projects.  Need assistance?  For a free consultation, please call: 1 (800) 475-1906.

 

[1] The narrative rule still applies in cases where a patient is referred to home health for skilled management and evaluation of his / her care plan.

Are More Home Health Program Integrity Initiatives on the Horizon?

April 22, 2015 by  
Filed under Home Health & Hospice

Doctor-Greeting-Patient-in-

Physician Face-to-Face Encounter with Patient

(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” [1] 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.”

IV.  Conclusion:

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 Liles represents health care providers in RAC and ZPIC appeals.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.

[1]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

 

CMS Has Clarified the HHA Definition of When a Patient is Confined to Home

CMS has clarified the term Confined to Home.(August 26, 2014): On August 1, 2014, the Centers for Medicare & Medicaid Services (CMS) issued Transmittal 192, clarifying their definition of when a home health patient is considered to be Confined to Home as described in the Medicare Benefit Policy Manual. This clarification more accurately articulates the Homebound definition found in the Social Security Act and is intended to prevent confusion and promote greater enforcement of the statute. The homebound clarification discussed in Transmittal 192 takes effect September 2, 2014.  As set out below, it is essential that you meet with your home health staff and referring physicians to better ensure that everyone in the patient care chain fully understands what it means for a patient be Homebound.

I.  Clarifying the Confined to Home / Homebound Definition:

One of the eligibility requirements for Medicare coverage of home health care is that a beneficiary must be certified as “homebound.” The latest transmittal clarifies the definition of Confined to Home in section 60.4.1 of Chapter 15 of the Medicare Benefit Policy Manual (Pub 100-02). Some of the more notable parts of revised Section 60.4.1 is summarized as follows:

For a patient to be eligible to receive covered home health services, the law requires that a physician certify in all cases that the patient is confined to his/her home. For purposes of the statute, an individual shall be considered “confined to the home” (homebound) if the following two criteria are met:

Criteria One:

The patient must either:

  • Because of illness or injury, need the aid of supportive devices such as crutches, canes, wheelchairs, and walkers; the use of special transportation; or the assistance of another person in order to leave their place of residence

OR

  • Have a condition such that leaving his or her home is medically contraindicated.

If the patient meets one of the Criteria One conditions, then the patient must ALSO meet two additional requirements in Criteria Two below:

Criteria Two:

  • There must exist a normal inability to leave home;

AND

  • Leaving home must require a considerable and taxing effort.

This clarification more accurately articulates the homebound definition found at Sections 1814(a) and 1835(a) of the Social Security Act. It also brings the Manual guidance in line with the 2012 Home Health Prospective Payment System final rule that was published on November 4, 2011 (76 FR 68599-68600).

Additionally, CMS has removed vague terms such as “generally speaking” from the definition to ensure clear and specific requirements. According to CMS, these changes will prevent confusion, promote a clearer enforcement of the statute, and provided more definitive guidance to home health agencies in order to foster compliance.

II.  Final Remarks:

All home health agencies should carefully review Transmittal 192 and the updated Medicare Benefit Policy Manual language. More importantly, home health agencies should educate every member in their clinical staff on the update to ensure strict compliance.

Lately, CMS has been quite active in its efforts to ensure that home health agencies are fully compliant with the Face-to-Face requirements. Nevertheless, agencies must not forget the importance of ensuring that a beneficiary is certified as homebound. This is a requirement that must be met for Medicare coverage! As a result, this clarification should assist help home health agencies in their own audit process and provide clearer guidance to both home health agencies and CMS auditors in the future.

CMS auditors will not relent in their efforts to ensure that Medicare funds are appropriately paid and that home health agencies are meeting the strict requirements for Medicare reimbursement. If you have recently experienced an audit of your records by a Medicare contractor, effective legal counsel is an effective resource that you cannot afford to dismiss. Moreover, implementing an effective compliance plan will more effectively ensure that your compliance efforts meet statutory requirements when – not if – an audit is conducted in your facility. If you need assistance with these two issues, give us a call today and we would be more than happy to assist you.

Saltaformaggio, RobertRobert 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 RACs, ZPICs and other CMS-engaged specialty 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 1 (800) 475-1906

CMS’ Proposed Rule Updates 2015 Home Health PPS Rates

July 23, 2014 by  
Filed under Home Health & Hospice

Doc Prescription(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.

Saltaformaggio, RobertRobert 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.

Physician Certification of Home Health Eligibility

July 22, 2014 by  
Filed under Home Health & Hospice

Certification of home health eligibility is requred and must be documented in the medical records.(July 22, 2014): The Affordable Care Act (ACA) requires that a certifying physician or an allowed non-physician provider (NPP) has a face-to-face encounter with a patient before certifying the patient’s eligibility for the home health benefit. The statute also requires certification of home health eligibility by a physician who documents that a face-to-face encounter occurred with the physician or an NPP who informed him of the encounter. If a certifying physician cannot do both the face-to-face encounter and the certification himself, a hospital physician may play a role in ensuring the process if properly completed.

 

I.  Certification of Home Health Eligibility is Required:

When a patient is admitted to home health from acute or post-acute care, the current procedures required for the home health certification would also apply to the face to face encounter. In many cases, the same physician who referred the patient to home health will also order the patient’s home health services, certify the patient’s eligibility to receive Medicare home health services, and sign the plan of care. This same physician would be responsible for documenting on the certification that he or an NPP working in collaboration with him had a face-to-face encounter with the patient.

II.  Problems That May Arise When Certification of Eligibility is Needed:

However, in some instances, one physician performing all of these functions may not be feasible. While in most cases, a patient’s primary care physician would be the physician who refers and orders home health services, documents the face to face encounter, certifies eligibility, and signs the plan of care, there are situations where this is not possible for the post-acute patient. For instance, many post-acute home health patients do not have a primary care physician. In other cases, the hospital physician might have primary responsibility for the patient’s care during the acute stay, and may or may not follow the patient for a period of time post-acute.

In circumstances such as these, it is not uncommon for the hospital physician to refer a patient to home health, initiate orders and a plan of care, and certify the patient’s eligibility for home health services. In the patient’s hospital discharge plan, the hospital physician should describe the community physician who will be assuming primary care responsibility for the patient upon discharge. Because there is a growing prevalence of NPPs in the acute and post-acute care settings, NPPs are also allowed to work with the community certifying physician regarding the NPP’s encounter with the patient in the acute and post-acute settings.

III. Final Remarks with Respect to the Certification of Home Health Eligibility:

Prior to 2011, the Centers for Medicare & Medicaid Services (CMS) manual guidance required that the same physician who signed the certification had to sign the plan of care. Now CMS allows additional flexibility associated with the plan of care when a patient is admitted to home health from an acute or post-acute setting. CMS allows physicians who attend to the patient in acute and post-acute settings to certify the need for home health care based on their face-to-face contact with the patient (which includes documentation of the face-to-face encounter), initiate the orders (plan of care) for home health services, and hand off the patient to his or her community-based physician to review and sign off on the plan of care. This accounts for the fact that, again, it is not always possible for the same physician to sign the certification and the plan of care, and it further allows the hospital physician to play a larger role in certifying the patient’s eligibility for the home health benefit.

Robert Liles represents health care providers in RAC and ZPIC appeals.Robert W. Liles, Esq., is a Managing Partner at Liles Parker, Attorneys & Counselors at Law.  Mr. Liles focuses his practice on fraud defense, internal audits/investigations, and compliance and regulatory matters. The attorneys at Liles Parker represent a wide variety of health care providers in administrative and civil proceedings. For a free consultation, call Mr. Liles at (800) 475-1906

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