Liles Parker PLLC
(202) 298-8750 (800) 475-1906
Washington, DC | Houston, TX
San Antonio, TX | Baton Rouge, LA

We Defend Healthcare Providers Nationwide in Audits & Investigations

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 Robert at:  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

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

July 21, 2014 by  
Filed under Home Health & Hospice

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

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

Accommodations Regarding Certification Requirement

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

Accommodations Regarding Face-to-Face Encounter

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

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

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

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

Accommodations Regarding Documentation

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

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

Robert W. Liles

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

CMS Proposes Changes to Medicare Home Health Benefit Face-to-Face Encounter Requirement

July 18, 2014 by  
Filed under Home Health & Hospice

Multiple Patient Record(July 18, 2014):The Centers for Medicare & Medicaid Services (CMS) has proposed several changes to the Medicare Home Health Prospective Payment System (HH PPS). Medicare pays Home Health Agencies (HHAs) through the PPS and pays higher rates for services furnished to beneficiaries with greater needs. One of the proposed changes to the HH PPS involves the face-to-face encounter requirements.

I. Requirement of a Face-to-Face Encounter

The Affordable Care Act (ACA) requires that a certifying physician or allowed non-physician provider (NPP) must have a face-to-face encounter with a patient before certifying the beneficiary’s eligibility for the home health benefit. The face-to-face encounter has to happen 90 days before care begins or up to 30 days after care began. The certification needs to be accompanied by documentation of the encounter, and this documentation has had to include a narrative explaining why the clinical findings of the encounter support that the patient is homebound and in need of skilled services. CMS is proposing three changes to the face-to-face encounter requirements:

  1. Eliminating the narrative requirement. The certifying physician would still be required to certify that a face-to-face patient encounter occurred. The physician will also still need to document the date of the encounter as part of the certification of eligibility, but a narrative justifying the patient’s need for home services will no longer be necessary.
  2. Only considering medical records from the patient’s certifying physician or discharging facility. In determining initial eligibility for the Medicare home health benefit, documentation will be limited to records from the beneficiary’s certifying physician or discharging facility.
  3. Considering the physician claim for certification/re-certification a non-covered service. If the HHA claim was non-covered because the patient was ineligible for the home health benefit, the physician claim for certification/re-certification of eligibility for home health services (not the face-to-face encounter visit) will be considered a non-covered service.

II. Documenting Requirements from Medical Records

The second proposal addresses questions which have been raised regarding which documents can be used to document a patient’s eligibility for the Medicare home health benefit. The new rule would only consider medical records from the patient’s certifying physician or discharging facility. Previously, face-to-face encounter documentation could include notes from multiple encounters that took place with multiple physicians and NPPs during an acute stay. It is uncertain how the new proposal will change this as the proposal does not specify what will constitute sufficient documentation. CMS does not require a specific form or format for the communication or documentation of the face-to-face encounter, regardless if a NPP, certifying physician, or the physician who cared for the patient in the acute or post-acute setting had the face-to-face encounter. What CMS does need to see is that the clinical findings that support the eligibility of the patient for home health are reflective of the patient’s condition upon discharge. Previously, a certifying physician could use documentation from the informing physician or NPP as his or her documentation of the face-to-face encounter, as long as he signed and dated the documentation, representing that he received that information from the physician who performed the face-to-face encounter, and that he is using that discharge summary or documentation as his documentation of the face-to-face encounter. It is unclear whether this process will be sufficient under the proposed rule. III. Conclusion In 2013, home health services cost Medicare approximately $18 billion. The goal of the proposed rule is to reduce payments for home health services. In addition to lowering costs and simplifying the face-to-face encounter regulatory requirements, other proposed changes include updating the HH PPS case-mix weights, revising the home health quality reporting program requirements, simplifying the therapy reassessment timeframes, revising the Speech-Language Pathology (SLP) personnel qualifications, and limiting the reviewability of the civil monetary penalty provisions.  CMS will accept comments on the proposed rule until Sept. 2, 2014, and if adopted the rule will take effect next year.

Robert Liles represents health care providers in RAC and ZPIC appeals.Robert W. Liles, Esq., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law.  Liles Parker attorneys represent dentists, orthodontists, and other health care providers around the country in connection with both regulatory and transactional legal projects. For a free consultation, call Robert at (800) 475-1906.

Medicare’s Face-to-Face Examination Rules: Home Health Trade Association Fights Back.

June 12, 2014 by  
Filed under Home Health & Hospice

Medicare Face-to-Face Rules Are Complicated(June 11, 2014):  The Department of Health and Human Services (HHS) and its agency the Centers for Medicare and Medicaid Services (CMS) have suffered yet another recent blow with the June 5th filing of a lawsuit against the agency by the National Association for Home Care & Hospice (NAHC).[1]  This most recent lawsuit against CMS was filed in connection with agency’s application of the Medicare face-to-face examination rules.  As you will recall, less than two months ago, on April 14, 2014, the American Hospital Association (AHA) and several other interested parties filed a lawsuit against HHS in connection with the way that CMS has been administering the “Two Midnight” rule on inpatient admissions. Even more recently, on May 22, 2104, the AHA filed a completely separate lawsuit against HHS for the failure of the Office of Medicare Hearings and Appeals (OMHA) to comply with applicable statutory deadlines regarding the administrative review by an Administrative Law Judge (ALJ) of claims denied by Recovery Audit Contractors (RACs).  Collectively, these lawsuits reflect a growing discontent by health care providers with the way that Medicare claims are being processed and handled by HHS and its agencies.  With NAHC’s initiation of litigation over CMS’s implementation of the “Face-to-Face” rules, the dissatisfaction of home health agencies around the country with the way that their Medicare claims are being handled has now moved to the forefront of the debate on how the Medicare program is being managed by CMS.

I.  Basic Face-to-Face Examination Rules Dispute:

Under the provisions of the Affordable Care Act (ACA), a face-to-face examination between a qualified physician and a Medicare beneficiary must be conducted to ensure that a patient qualifies for home health services.[2] On June 5, 2014, NAHC filed suit against both HHS and CMS challenging the government’s implementation of overly complex face-to-face examination rules which have greatly expanded the documentation requirements which must be met in order to show that a Medicare beneficiary is homebound and is in need of skilled nursing and / or skilled therapy services. As NAHC has alleged in its lawsuit, CMS has:

“devised and administered these physician documentation requirements in a manner that renders it nearly impossible to achieve compliance as they are wholly confusing to physicians, home health agencies, and patients, leading Medicare administrative contractors to evaluate claims in a manner that is inconsistent, arbitrary, and inaccurate. (Emphasis Added).

Essentially, NAHC has argued that CMS has placed “form” over “substance,” choosing to examine whether a home health provider has adhered to complex documentation requirements rather than focus on the best interests of the Medicare beneficiaries for whom they are responsible. As a result of the agency’s actions, countless home health claims filed by agencies around the country have been denied because their face-to-face documentation has allegedly failed to meet the documentation guidelines that have been implemented by CMS.  Perhaps most importantly, home health agencies have been forced to discharge Medicare beneficiaries from services because the face-to-face documentation examined by CMS or one of its contractors does not allegedly show that a patient qualifies as “homebound.”

II. How has CMS Implemented the “Homebound” Requirements Mandated under the ACA?

When formulating the regulations intended to implement Section 6407 of the ACA, CMS set out physician documentation requirements under 42 CFR 424.22(a)(1)(v) which specifies, in part, that:

“(v) The physician responsible for performing the initial certification must document that the face-to-face patient encounter, which is related to the primary reason the patient requires home health services, has occurred no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care by including the date of the encounter, and including an explanation of why the clinical findings of such encounter support that the patient is homebound and in need of either intermittent skilled nursing services or therapy services as defined in Sec. 409.42(a) and (c) of this Chapter, respectively.”[3]

Subsection (F) further provides that:

“(F) The physician responsible for certifying the patient for home care must document the face-to-face encounter on the certification itself, or as an addendum to the certification (as described in paragraph (a)(1)(v) of this Section), that the condition for which the patient was being treated in the face-to-face patient encounter is related to the primary reason the patient requires home health services, and why the clinical findings of such encounter support that the patient is homebound and in need of either intermittent skilled nursing services or therapy services as defined in § 409.42(a) and (c) respectively. The documentation must be clearly titled and dated and the documentation must be signed by the certifying physician.”[4]

CMS subsequently published a series of instructional materials in an effort to educate both referring physicians and home health agencies on the agency’s expectations in terms of the supporting documentation which must be shown, focusing on the face-to-face encounter requirements that must be shown in order for a claim to qualify for coverage and payment.  In response to continuing questions and related concerns by home health providers around the country, in January 2014, CMS issued MLN Matters, SE 1405, titled “Documentation Requirements for Home Health Prospective Payment System (HH PPS) Face-to-Face Encounter.”

III.  The Nature of the Face-to-Face Problem:

Unfortunately, in audits conducted on behalf of CMS, various federal contractors[5] have often found that the face-to-face rules and the encounter documentation completed by physicians[6] have not been properly completed. Typically, the referring physician would fail to  include an appropriate “brief narrative statement” which describes a patient’s clinical condition, shows the patient is homebound, and reflect that the patient needs skilled nursing and/or therapy services.  As a result, payment for these home health claims has been denied.

As the NAHC lawsuit reflects, CMS has prohibited home health agencies (and their staff) from composing or assisting a referring physician in completing the narrative statement that is required when completing a written face-to-face evaluation. This difficult situation is further complicated by the fact that referring physicians are not held accountable by CMS if they fail to properly document a face-to-face encounter with a patient who is being referred for home health services.  Ultimately, if a face-to-face encounter is determined to be insufficiently documented, payment is withheld or recouped from the home health agency, not the referring physician responsible for fully and accurately documenting the face-to-face encounter.

NAHC has further argued that requiring a physician to complete a narrative summary in support of a patient’s homebound status, which also shows a patient’s need for skilled nursing or therapy care, is beyond what has been authorized by the statute.  As you will recall, under   Section 6407 of ACA (as codified at 42 USC 1395f(a)(2)(C) and 42 USC 1395n(a)(2)(C)) merely provides that a physician must document that a face to face encounter with the home health care patient was conducted.  The statutory requirements passed under the ACA do not require that a brief summary narrative must be completed. Nevertheless, when drafting and implementing relevant regulations, CMS included requirements under 42 CFR 20 424.22(a)(1)(v) which mandate that a physician include a narrative or other documentation that shows why the patient’s clinical condition supports that the patient is homebound and needs skilled nursing or therapy services.

As a final point, NAHC has alleged that HHS and CMS have violated the due process rights of its member home health agencies through the issuance of “unclear and ambiguous implementing guidance on physician documentation.”

IV.  Relief sought by NAHC:

As relief, NAHC has asked that HHS and CMS be enjoined from requiring the current face-to-face examination documentation which goes beyond what is called for under the ACA.  NAHC is also asking that CMS draft and issue reasonable face-to-face documentation requirements which allow  agencies acting in good faith to be paid for the home health services being provided.

NAHC has also asked that retroactive reviews of summary narratives be suspended until the face-to-face examination rules can be clarified and / or revised.

V.  Recommendations:

While we wholly support the NAHC’s efforts and hope that they prevail in this litigation, it is important for home health agencies to keep in mind that this will likely be a tough case.  There are numerous precedent-setting cases that have been litigated over the years which have found that administrative agencies are to be given a wide degree of discretion when it comes to crafting of implementing regulations and how those regulations are to be interpreted.  As a result, we strongly recommend that home health agencies endeavor to meet the regulations as they are currently in place.

If your home health agency has not already done so, it is imperative that you implement an effective Compliance Plan which formally incorporates the agency’s heightened requirements for qualifying as a compliant face-to-face encounter. Your home health agency should also implement a vigorous internal audit program which reviews each and every face-to-face encounter form prior to submitting a claim for payment.

Robert W. Liles defends health care providers in Medicare auditsRobert W. Liles, Esq., serves as Managing Partner 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. Call for a free consultation:  1 (800) 475-1906.


[1] The primary plaintiff in this case, NAHC represents the interests of approximately 6,000 home health agencies around the country.
[2] Section 6407 of the ACA amended 42 U.S.C.§1395f(a)(2)(C), requiring that:
”[I]n the case of a certification made by a physician after January 1, 2011, prior to making such certification the physician must document that the physician himself or herself, or a nurse practitioner or clinical nurse specialist (as those terms are defined in Section 1861(aa)(5)) who is working in collaboration with the physician in accordance with State law, or a certified nurse-midwife (as defined in Section 1861(gg) as authorized by State law, or a physician assistant (as defined in Section 1861(aa)(5)) under the supervision of a physician, has had a face-to-face encounter (including through use of telehealth, subject to the requirements in section 1834(m), and other than with respect to encounters that are incident to services involved) with the individual within a reasonable timeframe as determined by the Secretary. . . ’’ The enactment of the ACA also resulted in a similar amendment, governing home health benefits.  This amendment to 42 U.S.C. 1395n(a)(2)(C) required that:“[I]n the case of a certification after January 1, 2010, prior to making such certification the physician must document that the physician, or a nurse practitioner or clinical nurse specialist (as those terms are defined in section 1861(aa)(5)) who is working in collaboration with the physician in accordance with State law, or a certified nurse-midwife (as defined in Section 1861(gg)) as authorized by State law, or a physician assistant (as defined in Section 1861(aa)(5)) under the supervision of a physician, has had a face-to-face encounter (including through use of telehealth and other than with respect to encounters that are incident to services involved) with the individual during the 6-month period preceding such certification, or other reasonable timeframe as determined by the Secretary. . .’.
[3] A complete rendition of this rule can be found at: http://www.gpo.gov/fdsys/pkg/CFR-2013-title42-vol3/xml/CFR-2013-title42-vol3-sec424-22.xml.
[4] Ibid.
[5] These private organizations include Medicare Administrative Contractors (MACs), Zone Program Integrity Contractors (ZPICs), and other private contractors engaged by the agency to review and audit home health claims to ensure that the services meet the agency’s documentation requirements.
[6] Under 42 CFR 424.22(a)(1)(v), a referring physician may conduct the face-to-face encounter and document it within 30 days of the patient’s admission to home health care.

« Previous PageNext Page »