Home Health & Hospice Week

Don't expect substantial changes to the face-toface requirement from CMS.

Old way: Currently, the physician who conducts the face-to-face encounter must be the same one who certifies the patient for home care eligibility.

New way: The Centers for Medicare & Medicaid Services proposes to allow hospitalist and other facility-based physicians to report their clinical findings from the F2F encounter to the certifying physician to fulfill the face-to-face requirement, according to the 2012 prospective payment system proposed rule published in the July 12 Federal Register. The change would mirror the way certain non-physician practitioners currently are allowed to report their F2F findings to the certifying doc.

The change to this requirement is nice, notes Washington, D.C.-based health care attorney Elizabeth Hogue. "The proposed alternative for meeting the face-to-face requirement will be helpful. It will be very useful for hospitalists to be able to perform the encounter and then provide information about the encounter to certifying physicians like NPPs already do under the rule."

Catch: Another physician could conduct the F2F encounter only when the patient is discharged from an acute or post-acute facility, the proposed rule makes clear. That's about 50 percent of Medicare home care patients, CMS estimates.

When implementing the F2F provision that was passed in the Affordable Care Act, commenters on the proposed rule listed a number of reasons that hospital physicians should be able to conduct the F2F but not have to certify the patient. "Stakeholders stated to CMS that many hospital attending physicians may order home health services upon discharge, but do not want the burden associated with certifying home health eligibility and establishing a patient's plan of care," CMS says in the 2012 proposed rule.

"Stakeholders further stated that because NPPs can perform the encounter and inform the certifying physician, it makes no sense to preclude the physician who attended to the patient in the hospital from informing the certifying physician about the patient for the purpose of satisfying the face-to-face  encounter," CMS adds.

CMS officials previously had said informally that the ACA statutory language precluded such an allowance. But the agency does an about-face in the proposed rule: "For patients admitted to home health following discharge from an acute or postacute stay, the statutory language contains an unintentional gap in that it does not explicitly include language which allows the acute or post-acute attending physician to inform the certifying physician regarding his or her face-to-face encounters with the patient." The change would close that unintentional gap, CMS says.

Added benefit: In addition to encouraging physician accountability, the change will "result in enhanced communication between the attending and certifying physicians," CMS says in the rule. In turn, that "will result in an improved transition of care from the hospital or post-acute setting to the home health setting."

Watch out: Hospitalists aren't totally off the hook for F2F documentation responsibilities, however. Facility physicians must report their "clinical findings" to the doctor who will be completing the F2F paperwork. CMS stops short of specifying what the documentation for those findings should include, unlike in the Medicaid F2F rule (see related story, p. 209).

Industry experts agree that the F2F change is helpful, but the revision's impact is a drop in the bucket when it comes to the regulatory burden home health agencies are facing under this requirement.

The F2F requirement "has caused a lot of unnecessary and predictable chaos and burden for patients, physicians and agencies for a marginal improvement in program integrity, at best," believes Bob Wardwell, the former CMS official who headed up PPS's design and implementation.

"The overall burden of the requirements remains greater than it needs to be to achieve the anti-fraud and abuse objectives," maintains Andy Carter with the Visiting Nurse Associations of America. "We remain disappointed that CMS has not accepted our recommendations to simplify the documentation requirements," Carter tells Eli.

In addition to documentation changes, CMS could ease agencies' burden by opening up the F2F time limit to the six months suggested in the ACA law, says attorney Robert Markette Jr. with Benesch/Dann Pecar in Indianapolis. In the rule, CMS makes no changes to the current 90-days-before or 30-days-after deadline.

CMS explains its rationale for rejecting the six-month timeframe in the Medicaid F2F proposed rule that also was published in the July 12 Federal Register. To achieve the statutory goal of fostering greater physician accountability in ordering home health services, "the encounter must occur close enough to the start of home health services to ensure that the clinical conditions exhibited by the recipient during the encounter are related to the primary reason for the recipient's need for home health services," CMS maintains in the Medicaid F2F rule. "Encounters would need to occur closer to the start of home health services rather than the 6-month period initially indicated, but not required by the Affordable Care Act."

CMS's failure to adopt timeframe or documentation changes, coupled with its implementation of a Medicaid F2F rule nearly identical to the Medicare one, means that HHAs are likely stuck with the current F2F requirements unless they get some help from Congress to change them, Markette predicts. The rules indicate that "CMS is locked into the current face-to-face arrangements and is not going to change them," he says. "If HHS has some other ideas on implementing face-to-face, this would have been a good excuse to roll them out."

Bottom line: "The industry was still holding out hope to fix this train wreck, but I think CMS has just made it clear that a 'fix' is not on the horizon," Markette observes.