Home Health & Hospice Week

What constitutes a good faith effort?

Guess who gets to decide if you're complying with the new National Provider Identifier requirements--the Centers for Medicare & Medicaid Services.

With less than two months left before crunch time, CMS decided to give you until May 23, 2008 to become NPI-only with all your transactions (see Eli's HCW, Vol. XVI, No. 13). That includes using referring physicians' NPIs instead of UPINs on all claims.

If you're not quite ready by May 23, 2007, you can implement a "contingency plan" to maintain your cash flow, CMS says in a release.

Why the change: CMS tries to make it sound as if providers weren't ready for the original deadline. But CMS was also behind on its obligations, notes the Medical Group Management Association. CMS failed to issue a policy that would "facilitate the communication of NPIs," says MGMA's William Jessee in a release.

Without any CMS policy, providers didn't know how to obtain the NPIs of doctors who referred patients to them. The MGMA has posed a sample letter to request a referring doctor's NPI on its site at www.mgma.com, but CMS has been promising a "Data Dissemination Notice" on NPI-sharing for years now.

The lack of this CMS policy has "hindered industry efforts to meet the original compliance date," MGMA says.

'Sustained Actions, Demonstrable Progress' Key To Compliance

But getting into compliance with the new NPI postponement may be trickier than it first appears. CMS' wording about the matter is vague and confusing, says attorney Robert Markette Jr. with Gilliland Markette & Milligan in Indianapolis.

To avoid penalties, a provider must show a good faith effort to comply with the NPI rules in the first place. CMS will determine "on a case-by-case basis, whether reasonable cause for the noncompliance exists and, if so, the extent to which the time for curing the noncompliance should be extended," the agency says in its contingency plan guidance.

Tip: That means home care providers should have their own NPI numbers and be ready to go by the original deadline. "Make the effort to be in full compliance by May 23, 2007," urges consultant Melinda Gaboury with Healthcare Provider Solutions in Nashville, TN.

But most agencies have gotten their own NPIs already, maintains Gene Tischer with the Associated Home Health Industries of Florida. The problem is with the NPIs of referring physicians.

Hitch: Providers can't be fully prepared for NPIs until CMS explains how they can obtain the NPIs of referring physicians, warns Martin Jensen, chief operating officer and chief analyst with Health IT Transition Group in Tulsa, OK.

Some of your referring physicians may not even have NPIs this summer, now that they know they have another year to obtain them. Some docs are holding off obtaining NPIs until they know how CMS plans to share them, Jensen adds.

Try this: To show that you've made a good faith effort to obtain your referring physicians' NPIs, an agency might document something like this, Gaboury suggests: "Dr. Jones, Dr. Smith and Dr. Thompson have not obtained and shared their NPI numbers. A letter has been sent and a phone call made to the physicians to obtain this information and share formal information regarding NPI."

Important: "In determining whether a good faith effort has been made, CMS will place a strong emphasis on sustained actions and demonstrable progress," the agency says in its guidance.

Thus, an agency might also document something like this, Gaboury offers: "Followup will continue with these physicians every two weeks until we have received (NPI) information." Then the agency must actually document the followup effort every two weeks until compliance.

The key to showing the good faith effort will be having a solid plan with specific steps that show your progress, Markette counsels.

Be reasonable: Remember that "the contingency plans, like everything else in HIPAA, are scale-able," advises attorney Ross Lanzafame with Harter Secrest & Emery in Rochester, NY. That means what's appropriate for a company with 10 employees may not be what's appropriate for one with 100, Lanza-fame tells Eli.

Providers "can consider cost in determining what is appropriate," Lanzafame allows. "However, cost cannot be the sole reason for deciding that something is inappropriate."

Other Payors May Require NPIs

The second part of NPI compliance is the contingency plan. "For a 12 month period after the compliance date ... CMS will not impose penalties on covered entities that deploy contingency plans (in order to ensure the smooth flow of payments) if they have made reasonable and diligent efforts to become compliant," CMS says in its guidance.

For most HHAs, that will mean using physicians' UPINs instead of NPIs if they haven't provided them. However, they will have to wait until CMS issues its own contingency plan before they know for sure how they can bill Medicare without the NPIs after the May 23 deadline.

Listen up: CMS says it will issue its plan soon and the agency has scheduled an April 18 conference call about NPIs.

Better safe than sorry: Even though CMS has said it'll give you an extra year's wiggle room on NPIs, other payors can start requiring them in May 2007, Jensen points out.

"It's already happening," Jensen says. "Dela-ware's Medicaid program instituted an NPI-only system last week. Providers were warned, but they weren't prepared."

And brace yourself for the possibility that your software may reject claims that don't carry your or your referring physicians' NPIs, Gaboury warns.

Bottom line: Being in full NPI compliance by the original May 23 deadline is the safest route for preserving your cash flow. 

Note: CMS' guidance is online at www.cms.hhs.gov/NationalProvIdentStand/Downloads/NPIContingency.pdf.