On October 30, 2014, CMS issued its pre-released copy of the Final CY 2015 Home Health Prospective Payment System Rule (“Final Rule”).  The Final Rule adopts many of the proposals found in the proposed regulations that were published by CMS earlier this year (“Proposed Rule”).  Notably, the Final Rule also contains CMS’s responses to many comments submitted by providers and other stakeholders, thus providing additional clarity on the intent behind some of the biggest changes.  

Hall Render first reported that CMS was proposing changing the face-to-face requirement in its July 11, 2014 article on the Proposed Rules.

In the Proposed Rule, CMS proposed eliminating the face-to-face narrative requirement because claims were being rejected in large numbers, primarily due to failures to comply with the face-to-face narrative requirement.  CMS recognized that these rejections had resulted in the recoupment of significant dollars and were placing a large burden on not just the home health industry but also physicians, patients and others in the long term care continuum.  In the Proposed Rule, CMS acknowledged the significant burden the face-to-face narrative has placed upon the home health industry.  In response, CMS proposed to eliminate the physician’s narrative component of the face-to-face requirements.  With the narrative eliminated, CMS proposed that auditors could rely upon documentation in the patient’s physician records to support the physician’s certification that the patient was confined to the home and in need of the services ordered.

In the Final Rule, CMS ultimately adopts its proposal to eliminate the face-to-face narrative and rely upon the documentation in the physician’s record.  To be clear, the Final Rule does not eliminate face-to-face, which is a statutory requirement.  However, it is eliminating the need for the certifying physician to provide a narrative explaining how the findings of the face-to-face encounter support the certification and services ordered.  While encouraged by CMS’s proposal to eliminate the narrative requirement, home health providers reserved judgment because they were concerned that a certification requirement tied to the physician’s record could pose its own issues and concerns.  For instance, how would the responsibilities be split (or shared) between the agency and the physician, and how would that responsibility be operationalized in the audit and recovery process?  Not surprisingly, CMS received numerous comments seeking clarification regarding the home health agency’s responsibility for the contents of the physician’s record and related issues during the comment period, and in the Final Rule, CMS offers answers that clarify what will be required by providers for face-to-face purposes.

Before reviewing some of the key comments in CMS’s responses, it is worth noting that one of the most important comments CMS received was a comment from the Medicare Payment Advisory Commission (“MedPAC”).  MedPAC commented that the narrative should continue to be a requirement as part of the face-to-face requirement.  MedPAC stated that this would allow time for MedPAC to consider alternatives.  CMS did not follow MedPAC’s recommendation and instead chose to eliminate the narrative requirement.   However, CMS stated it will continue to assess this change and reserves the right to make further changes in the future.  This means that MedPAC may very well propose alternatives in the coming years and encourage CMS to adopt the same.  Providers should be aware that the changes made in this Final Rule may not be the last changes to the face-to-face requirements.  We will likely see additional fine-tuning in the coming years.

CMS also received a large number of comments from home health providers and other industry stakeholders expressing support and encouragement to CMS for eliminating the narrative requirement.  Despite this general support, a number of key criticisms and questions surfaced in the comments.  For example, a number of commenters stated that placing responsibility for physician documentation on the agency and making the agency’s reimbursement contingent upon the contents of the physician’s documentation were unprecedented and unworkable.  CMS dismissed this concern and cited the Durable Medical Equipment, Prosthetics, Orthotics and Supplies regulations as an example where one provider’s reimbursement is dependent upon the documentation of another provider.  Commenters expressed concern with a scenario where ultimately the agency would be responsible for providing documentation from the physician that supports certification or admission upon the request of CMS or its contractors and dependent upon that documentation, despite the fact they would be limited in their ability to impact the contents of the documentation.  CMS’s response to these concerns makes it clear that providers will need to produce, as part of an ADR or other audit, the physician’s documentation.  This scenario is problematic and seems to confirm what the industry and stakeholders feared most about the Proposed Rule: that providers will be responsible for the content of a physician’s documentation supporting the certification as part of the agency’s record; that this documentation will be audited; and that home health agencies will be subjected to recoupment when the physician’s supporting documentation is insufficient.  Such a scenario may actually increase, not decrease, recoveries related to face-to-face requirements.

However, further responses from CMS suggest that agencies will have a greater ability to address the content of the physician’s supporting documentation.  This is important because, currently, agencies do not have an opportunity to impact or inform the physician’s narrative.  While CMS makes it clear that documentation supporting the certification by the physician must be readily available for audit, CMS states that it expects the findings from the agency’s initial assessment would be communicated to the certifying physician and that the certifying physician “can incorporate this information into his/her medical record for the patient and use it…to support his/her certification of patient eligibility.”  This means the agency staff could conduct the initial assessment upon referral of a patient and forward the findings of that assessment for review by the physician. The physician will then be able to sign off on the certification and incorporate the agency’s assessment into his/her medical record.  The agency’s assessment will then be used by the certifying physician to develop the plan of care and also support the certification of patient eligibility.  In other words, the agency can generate, as part of its assessment, documentation supporting the patient is confined to the home and the need for care, and then the physician can incorporate it into his/her medical record and rely upon it.  At that point, the agency will know the physician’s record supports the certification.

Providing supplemental information on the patient’s condition does not amount to “writing the physician’s narrative for the physician.”  It is simply an opportunity for the agency to communicate the findings of the assessment back to the physician.  The physician can then, by reviewing and signing, incorporate this supplemental information into the physician’s record.  This will result in greater communication between the agency and physician and could potentially create additional supporting documentation.  This process appears to function like other encounters between facility and community physicians, where a facility physician will communicate to the community physician the findings of a face-to-face encounter that occurred while the patient was in the facility, and the community physician will then adopt the findings into his/her record and rely upon hem.  CMS appears to be recognizing that in this context, it is reasonable to allow the agency, who must perform a comprehensive assessment, to communicate that information to the physician as part of developing the plan of care.  It only makes sense to allow that information incorporated into the physician’s record.

This aspect of the Final Rule is a significant improvement over the existing narrative requirement because it allows for more agency involvement.  It should be noted that physicians working with agencies must be willing to accept and incorporate an agency’s assessment into his/her own clinical record.  Physicians (and to the extent applicable, their employers) might recognize this as an opportunity to streamline this process, save time on the front end and ensure accuracy of records.

In light of this possibility, agencies should begin educating physicians on this change.  Agencies’ referring physicians will need to understand that additional supporting information from the home health agency can be relied upon by the physician if reviewed and signed by the physician. Your referring physicians should understand how this will reduce their workload from the current narrative model.

Although CMS’s comments provide little concrete guidance, it may be possible to address this communication without sending the physician a complete OASIS assessment tool.  We will provide you with an example of how this might work, based on CMS’s comments, but please keep in mind this is all subject to change as CMS moves forward and/or provides further “sub-regulatory guidance”.  For example, providers may consider expanding their intake assessment process so that it also generates an additional, separate supplemental document that clearly states nurses’ findings and how they support homebound status and medical necessity.  This would essentially be a summary of the results of the comprehensive assessment that links the assessment findings to the plan of care and eligibility criteria.  This additional document will ultimately be transmitted back to the physician for review, signature and incorporate into his/her medical record in support of the certification.  This has the potential to allow agencies to ensure the physician’s documentation supports the home health claims because the physician’s record includes a clear statement from the agency, communicated to the physician that supports the patient’s eligibility and need for services.  Although the agency prepared it, this is different than saying the agency can draft the narrative.  This is really a communication about the patient’s condition from one provider to another upon which the physician is relying.  Because this makes it clear that the burden of face-to-face will be reduced, this clarification makes the elimination of the narrative a win for the home health industry, referring physicians and patients.