By Amy K. Fehn, Esq. and Jennifer Colagiovanni, Esq.
A hospice provider's failure to comply with the timing requirements for the newly mandated face-to-face encounter may lead to claim denials in future audits.
Hospice providers are advised to take heed of the recent MLN Matters article issued by the Centers for Medicare & Medicaid Services (CMS) addressing claims processing issues when the required face-to-face encounter does not occur in a timely fashion.
To be eligible for the Medicare hospice benefit, a beneficiary is required to be certified by a physician as terminally ill. This certification must be issued in writing and must be on file prior to claim submission.
The Medicare Benefit Policy Manual requires specific elements to be part of a hospice certification or recertification, including: a) a statement that an individual's medical prognosis includes a life expectancy of six months or less if the terminal illness runs its normal course; b) specific clinical findings and other documentation supporting the life expectancy of six months or less; c) the physician's signature; and d) a brief narrative of the clinical findings supporting a life expectancy of six months or less.
Section 3132(b) of the Patient Protection and Affordable Care Act of 2010 (PPACA) added the requirement that a hospice physician or nurse practitioner conduct a face-to-face encounter with each hospice patient prior to the beginning of the 180-day recertification (i.e. the third benefit period) and prior to the start of each subsequent benefit period. Effective Jan. 1, 2011, the required face-to-face encounter must occur no more than 30 calendar days prior to the start of each benefit period.
Specifically, the recertification form must include a written attestation by the hospice physician or nurse practitioner who performed the face-to-face encounter. In cases in which the encounter is performed by a nurse practitioner, the attestation must indicate that the clinical findings of the encounter visit were provided to the certifying physician. The attestation, along with an accompanying dated signature, is required to be a separate and distinct section of the recertification form.
If all the above requirements are met, the beneficiary will be eligible for the Medicare hospice benefit. CMS recently released MLN Matters (MM7478) and Change Request 7478, which advise hospice providers of the repercussions of failing to meet the face-to-face requirements within the required time frames. Such a failing will cause the beneficiary to no longer be classified as terminally ill, and without this designation, the beneficiary will no longer be eligible for the hospice benefit.
If a beneficiary is ineligible for the hospice benefit due to lack of status, the hospice must discharge the patient from the Medicare hospice benefit. However, the hospice can readmit the patient to the hospice benefit if the patient later receives the face-to-face encounter and meets other eligibility requirements.
Potential Future Audit Reviews
In cases in which a patient is discharged from hospice care due solely to a face-to-face encounter failing to occur in a timely fashion, CMS expects the hospice to continue to service the patient at its own expense until the face-to-face encounter requirement has been met. By doing so, the hospice will be able to reestablish Medicare eligibility more swiftly.
This assertion by CMS suggests a potential focus for future audit reviews because hospice beneficiaries with delayed face-to-face documentation could have a lapse in coverage, which would be considered an overpayment to the hospice provider. Because of the new requirement under the PPACA's Section 6402, hospice providers have an affirmative duty to report and return any such overpayments.
The likelihood of such audits seems probable based on the scrutiny with which CMS audit contractors currently view hospice providers in regard to other requirements such as certification, level of care and six-month prognosis. The RACs also have taken aim at certain hospice-related issues on their current approved issues lists. For instance, HealthDataInsights, the RAC for Region D, has approved review of hospice-related services - specifically, services related to hospice terminal diagnosis provided during hospice period, which are included in the hospice payment and are not separately payable.
The Need for Policies and Procedures
Hospice providers are advised to develop and maintain effective policies and systems to ensure that face-to-face encounters are conducted in a timely fashion and documented appropriately. It is important to educate clinicians, coding and billing staff, and referring providers about the applicable time frames and documentation requirements connected to these encounters. Failure to have such policies in place could lead to future claim denials and place providers at risk of overpayment liability. These risks can be minimized by reviewing and understanding the recent guidance issued by CMS and its contractors.
Hospice providers also must be cognizant of the requirement to report and return any known overpayments, including those related to failure to perform face-to-face encounters in a timely fashion.
About the Authors
Jennifer Colagiovanni is an attorney at Wachler & Associates, P.C. Ms. Colagiovanni graduated with Distinction from the University of Michigan and Cum Laude from Wayne State University Law School. She is a member of the State Bar of Michigan Health Care Law Section.
Amy K. Fehn is a partner at Wachler & Associates, P.C. Ms. Fehn is a former registered nurse who has been counseling healthcare providers for the past eleven years on regulatory and compliance matters and frequently defends providers in RAC and other Medicare audits.
Contact the Authors
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MLN Matters MM7478: https://www.cms.gov/MLNMattersArticles/downloads/MM7478.pdfChange Request 7478: https://www.cms.gov/MLNMattersArticles/downloads/MM7478.pdf