Health Law Daily CMS aligns Medicaid face-to-face home health encounter rules with Medicare
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Thursday, January 28, 2016

CMS aligns Medicaid face-to-face home health encounter rules with Medicare

By Harold Bishop, J.D.

An Advance Release of a CMS Final rule will require that physicians document the occurrence of a face-to-face encounter with the Medicaid eligible beneficiary within reasonable timeframes when ordering home health (HH) services. This change will align the timeframes for Medicaid HH face-to-face encounters with existing Medicare rules for HH services. The Final rule will further align Medicaid HH requirements with Medicare rules by allowing certain authorized non-physician providers (NPPs) to document the face-to-face encounter for HH services and for medical equipment. The Final rule also clarifies that Medicaid HH services and items are not limited to home settings, and makes additional changes to the requirements for coverage of medical supplies, equipment and appliances under the HH benefit. The changes will be effective July 1, 2016. The Final rule will officially publish in the Federal Register on February 2, 2016.

Statutory basis. Section 6407 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) amended the Social Security Act to create new Medicare requirements for face-to-face encounters to support claims for HH services, and for durable medical equipment (DME). These requirements were also made applicable to Medicaid.

Specifically, Soc. Sec. Act Section 1814(a)(2)(C) under Medicare Part A, and Section 1835(a)(2)(A) under Medicare Part B, were amended by the ACA to require that the physician, or certain NPPs, document a face to-face encounter with the individual (including through the use of telehealth) before making a certification that HH services are required under the Medicare HH health benefit. Section 1814(a)(2)(C) indicates that in addition to a physician, a nurse practitioner (NP) or clinical nurse specialist (CNS) who is working in collaboration with the physician in accordance with state law, or a certified nurse-midwife or a physician assistant (PA), under the supervision of the physician, may conduct the face-to-face encounters before the start of HH services.

Section 6407 of the ACA also amended Soc. Sec. Act Section 1834(a)(11)(B) to require that physician orders for DME must be supported by documentation by the physician of a similar face-to-face encounter with a physician or specified NPPs. The NPPs authorized to conduct a face-to-face encounter on behalf of a physician are the same for DME as for HH services, except that certified nurse-midwives are not included.

Section 6407(d) of the ACA, provides that all of these requirements for face-to-face encounters apply in the case of physicians making certifications for HH services under Medicaid in the same manner and to the same extent as the requirements apply in the case of physicians making such certifications under Medicare.

Rule summary. The Final rule contains the following specific changes:

  • For the initial ordering of HH services, a physician or authorized NPP must document that a face-to-face encounter occurred no more than 90 days before or 30 days after the start of services.
  • For the initial ordering of certain medical equipment, the physician or authorized NPP must document that a face-to-face encounter occurred no more than 6 months prior to the start of services.
  • Clarifies in the definition of medical supplies, equipment, and appliances that items must be suitable for use in any setting in which normal life activities take place, other than a hospital, nursing facility, intermediate care facility for individuals with intellectual disabilities, or any setting in which payment is or could be made under Medicaid for inpatient services that include room and board.
  • Defines Medicaid HH supplies, equipment, and appliances, to better align with the Medicare program’s definition of DME.
  • Codifies the following policies that provide for the use of lists or other presumptions in determining coverage of items under the HH benefit for medical equipment: (1) states may have a list of preapproved medical equipment, supplies and appliances for administrative ease, but not as an absolute limit on coverage; (2) states must provide and make available to individuals a reasonable and meaningful procedure for beneficiaries to request medical equipment, supplies or appliances not on the state list based on a showing of medical necessity; and (3) individuals must be informed of their right to a fair hearing to appeal an adverse action.
  • Clarifies CMS’ interpretation that the Medicaid statute does not permit absolute exclusions of coverage as medical equipment, supplies, or appliances.

Applicable court decisions. The Final rule reflects the principles contained in Skubel v. Fuoroli, 113 F.3d 330 (2d. Cir. 1997) and Detsel v. Sullivan, 895 F.2d 58 (2d Cir. 1990), which found that the provision of HH services may not be limited to services furnished in the home and that HH services may be provided in any setting in which normal life activities take place, other than a hospital, nursing facility, intermediate care facility for individuals with intellectual disabilities, or any setting in which payment is or could be made under Medicaid for inpatient services that include room and board.

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