Effective April 2011, CMS implemented the Affordable Care Act requirement that hospices conduct a face to face visit as part of any recertification of any beneficiary in the third or later benefit period. With the forthcoming hospice and home health RAC auditor, hospices will face increasing audits on face to face compliance. In this post, Sheppard Mullin examines some of the key requirements of the face to face requirement.
Palmetto reported recently that 49% of its ADR denials for hospice and home health stem from the face to face requirement. Although the statutory requirement is fairly straightforward, specific regulatory timing and compliance requirements create significant pitfalls for hospice providers and, in turn, opportunity for Medicare contractors to recover alleged overpayments.
MEDPac originated the requirement in an effort to constrain expense by requiring closer doctor scrutiny before recertification. But, Medicare contractors see the face to face requirement as an opportunity to make simple denials of claims.
While prior hospice auditing required complex review of the six month diagnosis (a subjective doctor’s determination), the face to face requirements provide contractors with objective, verifiable means to attempt to deny or recoup reimbursement (even where services are medically necessary).
Outside the government context, medical providers and other contracting parties can assert substantial compliance as a defense to small, technical breaches that cause trifling harm. Wisconsin Dept. of Revenue v. Wrigley Co., 505 U.S. 214, 231 (1992) (noting general applicability of “venerable maxim de minimis non curat lex (“the law cares not for trifles”)).
There are also principles in both Federal case law and Medicare policy manuals that suggest that technical violations should not lead to payment forfeitures. United States v. Bajakajian, 524 U.S. 321 (1998) (setting aside as constitutionally excessive full forfeiture of $230,000 in cash as a civil fine for failure to report cash in excess of $10,000 to customs officials); Medicare Program Integrity Manual, § 3.1 (“When an error has been validated through MR, the corrective action imposed by the MACs should match the severity of the error”); Medicare Benefit Policy Manual, §20.1 (allowing face to face to occur up to 2 days late in cases of documented emergency admission; waiving face to face where patients dies within 2 days of admission).
But, Congress, following MEDPac’s lead, made the face to face visit a “condition of payment.” Under the statute, the failure to conduct a face to face can be grounds for payment denial. Medicare contractors will ground payment denials and/or repayment demands not only upon the failure to conduct the face to face but also upon arguably minor variances from the specific face to face requirements.
Here is an updated checklist of the technical requirements that could lead to repayment demands:
- Timing. The face to face visit must be conducted in the window 30 days prior to and including the first day of the benefit period. Because the face to face is to be utilized in recertification, the face to face should occur on or before the day the certification is executed. If a certification is signed before the face to face, the hospice should redo the certification after the face to face.
- Who. Unlike home health where any doctor can conduct the required face to face, in hospice, Medicare only allows a hospice doctor (either employed or contracted to the hospice) or an employed W2 nurse practitioner to conduct the face to face. Medicare’s rational is that: (a) hospices have medical directors on hand; and (b) these doctors/NPs alone have sufficient experience to collect the right information from the face to face.
- Where. There is no requirement that the face to face be conducted at the beneficiary’s home. However, Medicare has cautioned that beneficiaries should not be required to travel for a face to face encounter if such travel would constitute any hardship.
- Attestation/Signature. The face to face must be signed by the doctor or NP that performs the face to face. “Immediately above” the signature, there must be an attestation confirming that the face to face was performed, such as: “I certify that I performed a face to face visit with this beneficiary for purposes of assessing potential recertification of hospice care on the date indicated above.”
- Special Requirements for Nurse Practitioner face to face. Where an NP conducts the face to face, Medicare requires the further attestation that the NP has provided the results of the face to face to the certifying physician (NPs cannot execute the certification). Because many hospices use a single form for the face to face, this additional NP attestation could constitute a risk point.
- Face to Face Findings Notes. There is no specific requirement that doctors/NPs document the detailed findings from the face to face; however, because it is expected that face to face findings will be considered in the certification decision, face to face findings should be documented. Such findings will bolster a hospice’s defense of medical necessity in more traditional medical necessity audits.
- Date Requirements. In addition to including date of execution of the face to face attestation, the face to face form must also identify the date of the face to face visit as well as the dates of the upcoming benefit period. Each of these dates is required by the regulation. It may also be useful to identify the benefit period by number; but, benefit period should not be considered a substitute for benefit period dates.
- Certification/Narrative Requirements. Information gathered at the face to face is intended to be taken account in the subsequent certification decision. Ideally, the certification narrative should cross-reference such face to face information. Where a doctor performs the face to face, ideally that same doctor should write the narrative and sign the certification. Such best practices remove any potential doubt as to whether face to face information has been considered in the decision to recertify.
As can be seen, there are many specific requirements that Medicare has set forth for the face to face. Given Medicare’s forthcoming nationwide RAC specifically for hospice and home health, providers should expect scrutiny on face to face documentation.
Although providers can contest denials that are more technical in nature, it is useful for providers to ensure that they are in full compliance to avoid otherwise lengthy, costly, and uncertain appeals processes.