CMS Publishes Final Rule: Sweeping Changes to Home Health Agency CoPs

By on January 23, 2017

On January 13, 2017, CMS published its final rule revising the conditions of participation (CoPs) that home health agencies (HHAs) must meet to participate in Medicare and Medicaid programs. The final rule implements the proposed rules published in the Federal Register October 9, 2014 (79 FR 61164), and becomes effective July 13 2017.

Among its many changes, the final rule redefines terms and establishes new standards for the content of comprehensive patient assessments, care planning, coordination of services, quality of care, quality of assessments and performance improvement (QAPI), skilled professional services, home health aid services, and clinical record keeping. The rule also makes changes to personnel requirements including limiting who can be an HHA administrator. To review the final rule in its entirety, click here.

Filed under Centers for Medicare and Medicaid Services, Home Health Agencies, Medicaid, Medicare, Medicare Rules Tagged with , , , , , , , ,

OIG’s Advisory Opinion Concludes that Free Introductory Visits by Home Health Provider Are Not Prohibited Remuneration

By on September 4, 2015

A home health care provider’s policy of offering free introductory visits to patients who had already selected it as their home health care provider does not generate prohibited remuneration under the federal antikickback statute, the Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) concluded in a recent advisory opinion. (OIG Advisory Opinion No. 15-12.) The home health agency requesting the advisory opinion (requestor) stated that a physician or a health care professional provides a list of home health providers to a patient who needs home health services. The requestor has no involvement in the patient’s selection process, nor does it offer or pay any remuneration to the physician or other referral source. After a patient chooses the requestor as his or her home health agency, an employee of the requestor (liaison) contacts the patient by telephone to see if he or she would like to have an introductory visit with the liaison. The purpose of the introductory visit is to facilitate the patient’s transition to home health services and to increase compliance with the treatment plan. The liaison does not provide any diagnostic or therapeutic service reimbursed by any federal health care program during the introductory visit and the services provided during the introductory visit do not require clinical training.

The OIG concluded that the introductory visits were not remuneration because they did not provide any actual or expected economic benefit to patients. Although the services may have some “intrinsic value” to patients, the OIG concluded that the “intangible worth to patients” created by the introductory visits do not implicate the federal antikickback statute or the Civil Monetary Penalty law.

Filed under Civil Monetary Penalties, Department of Health and Human Services, Home Health Agencies, Home Health Care, Office of Inspector General, OIG Advisory Opinion

HHS Office of Inspector General Issues 2015 Work Plan (Part 1)

By on December 1, 2014

The Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) recently released its 2015 Work Plan. The OIG’s Work Plan outlines the reviews and activities the OIG plans to pursue during the 2015 fiscal year. Thus, the Work Plan gives health care providers an overview of the OIG’s enforcement priorities for the coming year.

The highlights from the OIG’s 2015 Work Plan are summarized in two separate posts.  This first post focuses on hospitals, nursing homes, hospice, and home health providers.

Hospitals: The OIG’s 2015 Work Plan places a major emphasis on hospitals, focusing its review of hospital activities in 22 areas. For the first time, the OIG will focus on adverse events in post-acute care for Medicare beneficiaries. The OIG will estimate the national incidence of adverse and temporary harm events for Medicare beneficiaries who receive care in long-term care hospitals, identify factors contributing to these events, determine the extent that the events were preventable, and estimate the costs to Medicare. According to the OIG, long-term care hospitals are the third most common type of post-acute care facility and account for almost 11 percent of Medicare costs for post-acute care.

The OIG also is focusing on the following hospital-related policies and practices, billing and payment, and quality of care and safety areas.

  • The OIG will study the impact of 2014 inpatient admission criteria known as the “two midnight policy.” The criteria require physicians to admit for inpatient care only those beneficiaries who are expected to need at least two nights of hospital care. If the beneficiary’s care is expected to last less than two nights, the beneficiary should be treated as an outpatient.  The OIG plans to study the impact of the new inpatient admission criteria on hospital billing, Medicare payments, and beneficiary co-payments, as well as determine how billing varied among hospitals.
  • The OIG will compare the Medicare payments for physician office visits in provider-based clinics and freestanding clinics to determine the difference in payments for similar procedures.
  • The OIG will determine the extent to which provider-based facilities meet the criteria of the Centers for Medicare and Medicaid Services (CMS). The OIG noted the financial incentives to bill as provider-based facilities because provider-based status allows facilities owned and operated to bill as hospital outpatient departments.
  • The OIG will examine other policies and practices that include:  reconciliation of outlier payments; costs associated with defective medical devices; salaries included in Medicare cost reports; and the payment policies for swing-bed services.
  • The OIG will examine various billing and payment issues, including inpatient claims for mechanical ventilation, selected inpatient and outpatient billing requirements, duplicate graduate medical education payments, indirect medical education payments, outpatient dental claims, and outpatient evaluation and management services billed at the new patient rate.
  • The OIG will examine other quality of care and safety issues in hospitals including hospital privileging, adverse events in inpatient rehabilitation facilities, and participation in projects with quality improvement organizations.

Nursing Homes: The OIG will review several areas relating to nursing homes, including Medicare Part A billing by skilled nursing facilities. The OIG stated that skilled nursing facilities increasingly bill for the highest level of therapy even though beneficiary characteristics did not change and that in 2009 skilled nursing homes billed one-quarter of all claims in error. In addition, the OIG will review questionable billing patterns for Part B services during nursing home stays. Congress directed the OIG to monitor Part B billing for abuse during non-Part A stays to ensure that excessive services are not provided. Of note, the OIG will also review the extent that Medicare beneficiaries in nursing homes are hospitalized for manageable and preventable conditions.

Hospices:The OIG will continue its focus on hospice care, specifically two areas in 2015: hospices in assisted living facilities and the use of hospice general inpatient care. As part of its review of the extent that hospice plans serve Medicare beneficiaries who reside in assisted living facilities, the OIG will determine the length of stay, levels of care received, and common terminal illnesses. The OIG’s work is intended to provide HHS with information as part of the Affordable Care Act (ACA) requirement that CMS reform the hospice payment system, collect data relating to hospice payment revisions, and develop quality measures for hospice. The OIG will assess the appropriateness of a hospice program’s general inpatient care claims, including a review of hospice medical records to address concerns that the inpatient level of hospice care is misused.

Home Health Services:The OIG will review compliance with the home health prospective payment system, notably the documentation required in support of Medicare claims. In addition, the OIG will examine the extent to which home health agencies employed individuals with criminal convictions.

Filed under Department of Health and Human Services, Home Health Agencies, Hospice Programs, Hospitals, Nursing Homes, Office of Inspector General 2015 Work Plan

Face-to-Face Documentation Remains Home Health Compliance Risk Area

By on August 6, 2014

The home health face-to-face documentation requirement remains a compliance risk area as evidenced by recent government activity.  The Patient Protection and Affordable Care Act changed the home health payment requirements as of Jan. 1, 2011, to require a physician or certain nonphysician practitioners to have and document a face-to-face encounter prior to certifying the patient’s eligibility for home health services.  42 C.F.R. § 424.22(a)(1)(v).  This requirement, which is a condition for payment, mandates that the face-to-face encounter occur within a certain timeframe and include an explanation of why the clinical findings support that the patient is homebound and needs intermittent skilled nursing services or therapy services.

In April 2014, the Department of Health and Human Services (HHS) Office of Inspector General (OIG) studied compliance with the face-to-face documentation requirement for home health, concluding there was limited compliance with this requirement.  OIG, “Limited Compliance with Medicare’s Home Health Face-to-Face Documentation Requirements,” April 2014.  The OIG found that 32 percent of home health claims that required face-to-face encounters did not meet Medicare documentation requirements, resulting in $2 billion in payments that should not have been made.  The deficient claims had no face-to-face documentation or had face-to-face documentation that lacked at least one of the required elements.  The OIG also found that physicians were inconsistent in completing the narrative content on the face-to-face documentation, even though the Centers for Medicare and Medicaid Services (CMS) provided an example of how this can be accomplished in as little as three sentences.

On July 7, 2014, CMS issued a proposed rule modifying the face-to-face documentation requirement.  79 Fed. Reg. 38366 (July 7, 2014).  CMS proposed three changes to the face-to-face encounter requirements.

1) CMS proposes to eliminate the physician narrative requirement.  The physician would still certify that a face-to-face encounter occurred with a physician or allowed nonphysician practitioner.

2) CMS proposes that to determine whether the patient is or was eligible to receive Medicare home health services, CMS will review “only the medical record for the patient or the acute/post-acute care facility … used to support the physician’s certification of patient eligibility.”  If the patient’s medical record used by the physician to certify eligibility was not “sufficient” to demonstrate the patient was eligible to receive home health services, CMS will not pay for the services.

3) CMS proposes that physician claims for certification/re-certification of eligibility for home health services would not be covered if the home health agency’s claim was not covered because the patient was not eligible for home health services due to an incomplete certification/recertification or insufficient documentation.  This change will be implemented through subregulatory guidance.

Although CMS claims that the changes will simplify the face-to-face documentation requirement by eliminating the physician narrative, it also expects that there should be sufficient evidence in the patient’s medical record to demonstrate that the patient is eligible for the home health benefit.  However, to date, CMS has not provided guidance on what constitutes “sufficient” documentation.  The deadline to file comments to the proposed rule is 5 p.m. on Sept. 2, 2014.

Until a final rule is in effect, home health agencies must comply with the current regulatory requirements for face-to-face encounter documentation.  CMS has issued various documents that can assist in completing the face-to-face documentation, including a Medicare Learning Network (MLN) newsletter discussing the documentation requirements, as well as answers to 49 questions about the face-to-face encounter documentation requirements.  Home health agencies should review this guidance in conjunction with their policies and procedures to ensure compliance with the face-to-face documentation requirement.

Filed under Face-to-Face Documentation Requirements, Home Health Agencies