Foster Swift Health Care Law Report (Also published in the Nov/Dec issue of MD News West Michigan)
Beginning January 1, 2011, face-to-face certification and recertification visits with home health and hospice patients will no longer be simply good practice. In its proposed rules published July 23, 2010, the Centers for Medicare and Medicaid Services ("CMS") implemented certain provisions of the Patient Protection and Affordable Care Act of 2010 and proposed that such visits become mandatory.
With regard to home health services, the proposed rules require that a physician must have a face-to-face visit with the patient no more than 30 days before certifying the patient as home health eligible or within two weeks of the start of the home health episode. (A non-physician practitioner is also allowed to make this visit if not employed by the home health agency, but is still prohibited from certifying the patient's eligibility for Medicare's home health benefit.) The physician must document the visit by stating who met with the patient, giving the date of the visit and describing how the clinical findings of the visit supported the patient's eligibility for home health services.
In issuing this proposed rule, CMS relied on the Medicare Payment Advisory Commission ("MedPAC") March 2010 Report to Congress. The MedPAC report outlined fraud and abuse concerns and stated that there was a need to strengthen physician accountability in home health certifications. It also stated that physicians would likely benefit from information learned during face-to-face visits.
Similarly, the proposed rules also address hospice recertification. They require a hospice physician or nurse practitioner to have a face-to-face visit with each hospice patient no more than 15 days prior to the 180 day recertification period as well as each subsequent recertification. (Although the nurse practitioner is allowed to make such a visit, he or she is still not allowed to certify a patient's terminal illness.) Additionally, the physician or nurse practitioner must sign an attestation that the visit took place, report on the clinical findings to support recertification and document the name of the patient and date of the visit. CMS also suggests (but does not currently require) that the recertification reference the dates of the benefit period to which it applies.
The recommendation to implement face-to-face visits was made after reviewing MedPAC's analysis of hospice trends between the years 2000 and 2008. During that time period, Medicare spending on hospice services nearly quadrupled. MedPAC attributed this increase to the enrollment of more beneficiaries and longer lengths of stay.
Although it acknowledged innocent reasons for the spending increase, MedPAC also faulted the current hospice payment system for providing an incentive for longer patient stays. It noted that visits and other high-effort services are most often provided immediately after the beneficiary elects hospice and again at the end of life. There is a lull in the middle of the hospice episode. The Medicare payment rate for hospice services is constant, however, regardless of the number of visits or services provided. Thus, a long hospice stay is more profitable to the provider because, on average, there are fewer visits and services provided to the patient. This puts the program at risk for inappropriate utilization among providers. (Although MedPAC recommended changes to the hospice payment system, they have not been adopted.)
Home health agencies, hospices, physicians and non-physician practitioners are well advised to comply with the new requirements to avoid any appearance of impropriety (and added scrutiny from CMS). For assistance in complying with these and other health laws and regulations, please contact the home health and hospice experts in our Health Law Practice Group.