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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.

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.

CMS Extends HHA Enrollment Moratoria

CMS has extended the HHA enrollment moratoria for new agencies.(August 6, 2014):  The Centers for Medicare & Medicaid Services (CMS) has extended its year-long HHA enrollment moratoria on the enrollment of new home health agencies and ground ambulance suppliers in several major metropolitan areas. Furthermore, CMS has broadened its temporary enrollment moratoria so that it applies not only to Medicare, but also to enrollment in Medicaid and the Children’s Health Insurance Program (CHIP).

This announcement is just the latest maneuver in CMS’ ongoing efforts to prevent and combat fraud, waste, and abuse in these health care programs while safeguarding taxpayer dollars and ensuring patient access to care is not interrupted.

I.  Initial HHA Enrollment Moratoria:

On July 31, 2013, CMS imposed a moratoria[1] on the enrollment of HHAs in Miami-Dade County, Florida, and Cook County, Illinois (Chicago), as well as selected surrounding counties.  The moratoria also included the enrollment of ground ambulance suppliers and providers in the Harris County, Texas (Houston), area and its surrounding counties.  CMS indicated that its purpose for imposing this moratoria was to prevent and combat fraud, waste, and abuse in Medicare, Medicaid, and CHIP.

II.  CMS Extends Initial Moratoria, Includes Additional Counties Nationwide:

As we highlighted previously, CMS extended for six-months that initial enrollment moratoria.  Moreover, the agency also broadened that moratoria to include the enrollment of HHAs in Broward County, Florida (Ft. Lauderdale); Wayne County, Michigan (Detroit); and Dallas County, Texas, and the surrounding counties. Additionally, CMS has set forth a temporary moratorium on the enrollment of new ground ambulance suppliers and providers in the Greater Philadelphia, Pennsylvania area.

III.  CMS Extends Moratoria For An Additional Six Months:

On August 1, 2014, CMS announced that it would extend those moratoria for an additional six months. Again, this temporary moratoria affects the enrollment of new ambulance suppliers and providers and HHAs in specific geographic locations within the greater metropolitan areas in Florida, Illinois, Michigan, Texas, Pennsylvania, and New Jersey.

In extending these enrollment moratoria, CMS states that it considered both qualitative and quantitative factors that suggests a high risk of fraud, waste, or abuse. The agency relied on reports and consultation with the Department of Health and Human Services’ Office of Inspector General and the Department of Justice, both of whom have longstanding experience with ongoing and emerging fraud trends and activities through civil, criminal, and administrative investigations and prosecutions.

IV.  Final Remarks:

This latest moratoria will last for only six months.  However, HHAs and ground ambulance suppliers and providers should recognize that it will likely be extended for an additional six-month period, at the least.  In fact, in our previous assessment following the first extension, we concluded that additional extensions were more than likely. Providers in these affected metropolitan areas – including those surrounding counties, which are outlined here – should take risk into consideration.

Moreover, as noted above, CMS’ temporary enrollment moratoria affects these providers who not only participate in Medicare, but also in the Medicaid and CHIP programs.

Is this latest extension as significant as the first one? Maybe not.  Many of the HHAs and ground ambulance suppliers were caught unaware by the first extension.  One of our attorneys, Jennifer Papapanagiotou, spoke with an authority at the CMS-Dallas Regional Office and that individual reported that over 100 applications in Texas alone had been affected by the first extension. Interestingly, the individual at CMS reported that the CMS-Dallas Regional office had no prior notice of the moratorium and that it is being driven largely by the HEAT task force.

Nevertheless, HHAs and ground ambulance suppliers and providers – which, as noted above, includes that who not only participate in Medicare, but also in the Medicaid and CHIP programs – may not have an excuse any longer.  Our firm has worked with a number of HHAs in the past and we understand the complexities with setting up a new practice or ensuring that your current HHA meets all of the relevant Federal and State regulations. Our firm also has significant experience ensuring that you understand the medical necessity, documentation, coverage, coding and billing requirements applicable to HHA claims.  If you need assistance with dealing with the new CMS moratoria or any HHA compliance issues, give us a call today.

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

[1] CMS has the regulatory authority to establish temporary moratoria on the enrollment of certain providers and suppliers pursuant to 42 U.S.C. § 1395cc(j)(7) and 42 CFR § 424.570.

Is Your Agency Employing a Physician to Conduct Home Health Face-to-Face Visits? Have You Assessed the Risks?

August 29, 2012 by  
Filed under Home Health & Hospice

Home Health Face-to-Face(August 29, 2012): Home health agencies have a long history of being scrutinized by government authorities.  This scrutiny even further intensified after passage of the Affordable Care Act (ACA), which was recently upheld by the Supreme Court. Under the ACA, claims for home health agency services are now required to have a face-to-face visit by their physician.  This change is intended to help further ensure that the patients properly qualify for skilled nursing services and are, indeed, homebound. Specifically, a physician and patient must have a face-to-face encounter at most 30 days after a home health agency has initiated services, and at most, 90 days before. Nevertheless, it can be difficult for a home health agency to guarantee that this is done, as the home health agency does not usually have control over physicians or patients.

In response to this challenge, a relatively new practice has emerged in some parts of the country, with home health agencies actually employing traveling physicians. These arrangements, while not yet tested under most states’ “Corporate Practice of Medicine Act,” appear to allow a home health agency to direct a physician to examine a patient and determine whether the patient is eligible for home health agency care and treatment. Because homebound patients, by their definition, cannot leave the home without a considerable and taxing effort,” it is often difficult for these patients to regularly see their primary care physician. Under this new arrangement, a physician would ostensibly visit patients in their homes on an as-needed basis, both to certify and / or re-certify a patient’s continuing need for skilled nursing services.  The visiting physician would also see to a patient’s traditional  primary care needs.

I.  Concerns Regarding the Employment of a Physician by a Home Health Agency:

If your home health agency is employing a physician to conduct face-to-face evaluations, both the home health agency and the employed physician should carefully consider the myriad possible problems which could arise under this scenario.  Frankly, a violation of your state’s “Corporate Practice of Medicine Act” could be the least of your problems.  This business arrangement could also constitute a violation of the Federal Anti-Kickback Statute if it is not properly constructed.  Depending on the facts, it could also present a problem under Stark.  Stark is a complex, confusing, and technical law, and is also “strict liability”, meaning that if a violation occurs, it doesn’t matter if you intended for it to occur. You do not need a “mens rea” to violate Stark.Therefore, it is essential that you have an experienced health lawyer examine this business arrangement to help ensure that it meets all regulatory and statutory requirements.

Most states have some version of a Corporate Practice of Medicine Act, which prohibits or limits the managerial and business responsibilities of lay persons and non-practicing physicians. The goal of these Acts is to preserve the physician-patient relationship, with special emphasis on ensuring that the doctor can exercise independent medical judgment, free from self-interest or conflicting relationships. In situations where a home health agency employs one or more physicians, it must be very careful about defining or at all limiting the physicians’ independence with respect to patients.

II.  Final Remarks:

To their credit, most home health agencies are attempting to remain financially viable while ensuring that they are compliant with government rules and regulations. Given the complexity of the laws and regulations governing these skilled services, it can be a difficult task for many providers to meet their obligations. Nevertheless, robust compliance initiatives can keep a home health agency, its owners and its employees stay out of trouble.  If you have not already done so, it is essential that you immediately work with your attorney to develop and implement an effective Compliance Plan.  Although no Compliance Plan can completely keep ou out of harm’s way, an effective plan can go a long way towards that goal.

Robert LilesHealthcare Lawyer represents clients nationwide in Medicare overpayment appeals and other actions taken by RACs and ZPICs, including pre-payment reviews, suspensions and revocation actions initiated by a CMS contractor.  Additionally, Robert counsels clients regarding both OIG’s and CMS’ self-disclosure protocols.  Moreover, he assists doctors, hospices, home health agencies, and skilled nursing facilities with their efforts to develop and implement effective Compliance Plans and Programs. For a free consultation, call Robert today at 1(800) 475-1906.

Existing Home Health Agencies Considered a Moderate Risk

October 5, 2010 by  
Filed under Home Health & Hospice

Existing Home Health Agencies are Considered to be a Moderate Risk(October 5, 2010):  Existing home health agencies are considered to be a Moderate Risk for screening purposes. Late last month, the Centers for Medicare & Medicaid Services (CMS) published a Proposed Rule entitled Medicare, Medicaid, and Children’s Health Insurance Programs; Additional Screening Requirements, Application Fees, Temporary Enrollment Moratoria, Payment Suspensions and Compliance.”  As set out in the Proposed Rule, the Health Care Reform Act passed last March:


“. . . makes a number of changes to the Medicare and Medicaid programs and CHIP that enhance the provider and supplier enrollment process to improve the integrity of the programs to reduce fraud, waste, and abuse in the programs.” 

Among these various changes mandated by the legislation, the Secretary, HHS, is required to determine the level of screening applicable to providers and suppliers according to the risk of fraud, waste, and abuse the Secretary determines is posed by particular categories of providers and suppliers.  As set out in the Proposed Rule, CMS intends to categorize health care providers and suppliers by the “Level of Risk” generally associated with that type of provider or supplier.  Three levels of risk have been identified, “Limited,” “Moderate,” and “High.”  The types of screening tools to which a provider will be subjected vary depending on the level of risk assigned to a specific type of provider or supplier by CMS. The types of screening tools to be used at each level of risk include the following:

Category of Risk and Required Screening for Medicare Physicians, Non-Physician Practitioners, Providers, and Suppliers 

Type of Screening Required  

 Limited Moderate High
Verification of any provider/supplier-specific requirements established by Medicare   




Conduct license verifications, (may include licensure checks across States)  




Database Checks (to verify Social Security Number (SSN), the National Provider Identifier (NPI), the National Practitioner Data Bank (NPDB) licensure, OIG exclusion, taxpayer identification number, tax delinquency, death of individual practitioner, owner, authorized official, delegated official, or supervising physician)   




Unscheduled or Unannounced Site Visits     



Criminal Background Check   





Notably, CMS considers currently enrolled “Home Health Agencies” to represent a Moderate risk.  In comparison, CMS considers prospective (newly enrolling) home health agencies to be a High Risk. Commenting on the screening steps that CMS will be taking when dealing with providers and suppliers with a “Moderate” level of risk:

 “We propose that Medicare contractors will conduct unannounced pre- and/or post-enrollment site visits in addition to those screening tools applicable to the “limited” level of risk. Based on the success of pre-and/or post enrollment site visits conducted by the NSC during the enrollment process for suppliers of DMEPOS and a similar process established by carriers and A/B MACs during the enrollment of IDTFs, we believe that unscheduled and unannounced pre-and post-enrollment site visits help ensure that suppliers are operational and meet applicable supplier standards or performance standards. In addition, we believe that unscheduled and unannounced pre-and post-enrollment site visits are an essential tool in determining whether a provider or supplier is in compliance with its reporting responsibilities, including the requirement in §424.516 to notify the Medicare contractor of any change of practice location. Moreover, §424.530(a)(5) and §424.535(a)(5) give CMS and its Medicare contractors the authority to deny or revoke Medicare billing privileges for providers and suppliers respectively if the provider or supplier is not operational or the provider does not maintain the established provider or supplier performance standards.” (emphasis added).

 In addition to the screening steps to be taken, the Proposed Rule also covers the implementation of payment suspension authorities and a variety of other provisions set out in the Health Care Reform Act.

The lawyers at Liles Parker, Attorneys & Counselors at Law have extensive experience representing home health agencies. Is your home health agency being audited?  For a free consultation, please give us a call at: 1 (800) 475-1906.