Ever had that dream where you were in school, suddenly taking a test, and were completely unprepared for the exam? A nauseating feeling of being completely on the spot and destined for serious trouble permeates those dreams, and lingers long after waking up with a gasp. That’s sort of how most providers are feeling about CMS’s face-to-face requirement.
In basic terms, CMS took the face-to-face meeting that occurs between patients and physicians and other healthcare staff that is designed to prove medical necessity for certain power mobility claims, and expanded the requirement to a wide variety of higher-ticket items across the spectrum of home medical equipment. The goal is to create yet another layer of procedure and documentation to prove that an expensive item being billed to Medicare is for a legitimate need.
On the face of things, this seems like a straightforward idea, but the roll out of the requirement has been anything but. It has been delayed multiple times; the range of DME items covered by the program is not exactly straightforward; the elements of the requirement haven’t been clearly conveyed; and CMS has established separate implementation and enforcement dates for different elements of the requirement.
The net effect is that many providers aren’t prepared and neither are their referral partners. In September, we surveyed our online readers at HME-Business.com about whether or not they were ready for face-to-face, and the results were not encouraging:
- 7 percent of respondents reported that their businesses and referral partners were prepared.
- 63 percent replied that their businesses were prepared, but their referrals weren’t entirely prepared.
- 29 percent said that neither their businesses, nor their referrals were fully prepared.
CMS’s Ball of Confusion
The trouble with the face-to-face requirement is that the industry hasn’t been exactly clear on what it comprises and when it is required. Let’s look at the timeline for starters. Originally, the face-to-face requirement was supposed to go into effect on July 1 of last year. At that point the whole requirement was a massive departure for providers that were originally getting dispensing orders.
In fact, it was such a shock that CMS delayed the requirement until Oct. 1. Then, in mid September, CMS released another announcement saying it would delay enforcement of the face-to-face requirement until sometime in 2014. That is as specific as CMS got.
“Although many durable medical equipment suppliers and physicians are aware of and are currently complying with this policy, CMS is concerned that some may need additional time to establish operational protocols necessary to comply with this new law,” the agency said in its announcement. “As such, CMS expects that during the next several months, suppliers and physicians who order certain DME items will continue to collaborate and establish internal processes to ensure compliance with the face-to-face requirement.”
Needless to say a nebulous enforcement date for a program that has reached implementation, and a massive percentage of unprepared providers and referral partners is leading to much confusion. Case in point: what is the difference between enforcement and implementation?
“There is certainly an awful lot of confusion as to what’s going on,” says Wayne van Halem, president and founder of The van Halem Group. “There are a lot of people that think the requirement is delayed, and that’s not the case. It’s not the requirement that has been delayed, it’s the enforcement.
“But it’s still not that clear, and there are still a lot of unanswered questions that surround this requirement,” he continues. “It’s certainly causing a lot of problems and concerns. We have a lot of clients calling and asking us questions that I don’t think we can accurately respond to, because we don’t know the answers ourselves, and we don’t want to give out wrong information.”
It is important to understand: just because the enforcement is delayed, that does not mean providers do not yet have to live up to the requirement. The requirement has definitely reach implementation.
And the risk in not recognizing that is massive: providers not adhering to the requirement, regardless of enforcement, could be setting themselves up for future recoupments. This is why the delay in enforcement is particularly vexing.
“Nothing has changed as far as enforcement is concerned,” van Halem explains. “Just because they [CMS] aren’t enforcing it doesn’t mean that the requirement isn’t there, and I’m concerned that later providers are going to get some sort of audit, and a RAC will come back three years from now requesting to see these face-to-faces, and they won’t be there.”
And van Halem adds that any claim that involves face-to-face is likely to be one that will gain an auditor’s attention.
“With this specific requirement chances are these claims will be more scrutinized because of the additional criteria that have to be met,” he explains.
So when is enforcement for face-to-face going to happen? The best answer to that question might be, “Who cares?” All of the experts and providers interviewed for this story agreed that they don’t have an inkling as to when CMS will begin enforcing face-to-face besides the exceedingly vague timing the agency released right before last October. But then again, does it even matter when CMS begins enforcing?
“I’m still not even clear as to what that exactly means,” van Halem says. “Are they [CMS} still going to hold providers accountable if they don’t have this information? I wouldn’t think so, but I wouldn’t put it past them, either. So the fact that they are delaying enforcement? Even that is unclear as to what that means.”
Prepare to Be More Confused
In addition to the face-to-face evaluation, another piece of documentation is required: the detailed written order prior to delivery. The detailed written order prior to delivery must contain five key elements: the beneficiary’s name; the item of DME ordered; the prescribing physician’s NPI; the physician’s signature; and the date.
And here’s where things get tricky: While the enforcement of the face-to-face requirement was delayed into 2014, enforcement for the detailed written order was not delayed. CMS made this point very clear in December. While enforcement of the face-to-face was delayed, the requirement of a detailed written order prior to delivery has been on the books since July 1, and CMS has said that the only enforcement that was delayed was for the face-to-face requirement. The news sent many providers scrambling.
“We all know that the rule has been twofold,” says Kelly Riley, CRT, RCP, a well-known respiratory DME and respiratory claims expert. “You have to have a face-to-face evaluation, and you have to have written order prior to delivery, which includes a physician’s signature prior to dispensing equipment. That’s the major change in this.
“Now they’re saying that piece of it [the detailed written order] was never delayed in terms of the expectations,” she says. “It’s huge.”
At least those providers that were in the know, were scrambling. For providers who were originally getting dispensing orders before the whole face-to-face requirement came down, having shifting dates and now different enforcement dates and implementation dates for different components of a rule they have never had to deal with before is absolutely jarring, according to Riley. Many of those providers are still working to address what’s been required from them yesterday, let alone today.
“We’ve been receiving questions from clients about the detailed written order prior to delivery … and [many] were still dealing with the old issue of getting a dispensing order, and not the detailed order prior to deliver,” van Halem adds. “It’s pretty scary.”
The Scope of Face-to-Face
There are some key elements that must occur for the face-to-face requirement to be fulfilled: For items that require a face-to-face, the meeting must occur between the patient and a physician, nurse practitioner, physician assistant or clinical nurse specialist six months of the prescription. It must address the need for the item for which Medicare is being billed, and it has to be date stamped.
Get the List of DME Items Covered by Face-to-Face
You can download a PDF file detailing the various face-to-face requirements, as well as a listing of all the DME items covered by the new face-to-face requirement, from the Jurisdiction C website. The items are located under chapter three: www.cgsmedicare.com.
Then, accompanying the face-to-face is the detailed written order prior to delivery. And again, that detailed written order must contain the beneficiary’s name; the item of DME ordered; the prescribing physician’s NPI; the physician’s signature; and the date.
So which products are impacted by the face-to-face requirement? That gets a little tricky. The basic idea of face-to-face is that it is required for more expensive DME that are more susceptible to fraud and abuse.
“But they [CMS] haven’t defined it, yet,” van Halem says. “Generally they defined higher dollar value items, as anything over $1,000.”
However, right now, face-to-face is only required for items that have been listed. That list can be obtained from the Jurisdiction C supplier manual, which added a section for face-to-face that details all the codes. But CMS can add to that list. All in all, there are roughly 150 HCPCS codes on the list at present.
Getting CMS to See Sense
So with a broad requirement such as face-to-face being rolled out with such a confusing timetable, and with providers and their referral partners in such a state of partial or complete unpreparedness, one has to ask: can anything be done with CMS to bring some sense to the situation? This is especially important given the complete lack of clarity CMS has shed on the difference between enforcement and implementation dates, and the huge risk for audits such a situation creates.
“AAHomecare has been pushing pretty hard in terms of asking CMS to 1) get rid of the enforcement vs. effective date, because it is inappropriate,” says Kim Brummett, senior director of Regulatory Affairs for the American Association for Homecare. “You can’t say that the effective date is July 1, provide no education and no guidance, and say the enforcement is only delayed.”
The association sent a letter to CMS’s general counsel asking for intervention after numerous requests sent to the CMS leadership team overseeing the face-to-face project asking for clarification on various items went unanswered, she says. In fact, even though the four DME MACs have provided comments and even written a dear physician letter to offer guidance, CMS had not yet published the letter as of press time.
If anything CMS has only distributed its December note regarding the detailed written order prior to delivery requirement being in effect going back to July 1.
“A written order prior to delivery? You can’t retroactively enforce it,” Brummett notes.
And the HME industry isn’t the only component of the healthcare continuum frustrated with CMS’s handling of the requirement. Brummett says AAHomecare has met and worked with the American Association of Nurse Practitioners, the American Academy of Physicians’ Assistants, and the Association for the Advancement of Wound Care to change legislatively the language on the requirement of a physician sign-off for those groups.
“We also would like to push an effective date that everybody agrees to, and that there is six months of education on the part of CMS,” she adds. “So there is still a lot of activity around that. … We’re pressing on a lot of angles, and hopefully something is going to stick soon.”
And in fact, the reason CMS might have been so nebulous with its “sometime in 2014” enforcement date could be that it was betting on changes to come from elsewhere.
“We’re tending to believe the “sometime in 2014” was put in there to allow for some kind of legislative fix, Brummett says. “Because the nurse practitioners have been a very, very vocal group with CMS and certainly on The Hill about the requirement of the physician to sign off.”
That requirement is no small issue. Besides it being a bit of a slight to medical professionals who have been writing orders for DME for years and years, the fee to Medicare for a physician sign-off is $8.85. If, as the AAWC has reported, there are 10 million Medicare beneficiaries actively using some aspect of DME, and if CMS estimates that five percent of those pieces of DME were prescribed by non-physicians (as it told the AANP), then that means 500,000 claims that would require $8.85 for each signature.
“That’s millions of dollars being spent unnecessarily,” Brummett says, adding that AAHomecare estimates that the percentage of claims needing the signature could be much higher, putting the possible cost well above that $4.425 million.
Catching up to Reality
But while the industry works with other groups to bring some sense to the situation, providers still must contend with the present reality. And the bottom line is that many providers, whether they realized it or not, should have been fully prepared for face-to-face, and should have been working to ensure their referral partners were prepared, as well. What should the providers that are playing catch-up to this grim reality start doing now to be in compliance with the face-to-face requirement?
“What providers need to be doing is what they should have been doing all along since July 1,” Riley says. “Accepting the fact that the rule went into effect. … While there has been a delay in enforcement, the rule is absolutely positively in place, and you’re supposed to follow it. ”
Priority one: Providers must operate as though the requirement is a here-and-now reality — because it is. Providers should be training staff to get the face-to-face evaluations, as well as the detailed written orders prior to delivery.
“All of that should be in effect, now,” van Halem advises, adding providers need to be “making sure that [referrals are getting the face-to-face]; getting the staff familiar with what items require it; that they understand that it has to be date stamped; and things along those lines. … They need to be really proactive on developing a process and educating their staff on what the requirements are.”
Educating the staff is critical then. They must understand how critical each element of the face-to-face is, especially given that auditors will likely be keeping a sharp eye out where these claims are concerned.
“For example, the date stamp issue is such a minor issue, but I can’t tell you how many power mobility claims get denied because they aren’t date stamped,” van Halem says. “It’s a requirement and it’s so simple, but if staff doesn’t know, the auditors come back three years from now and recoup on claims because there’s no date stamp.”
Coordinating with referral sources is critical. Riley advises that providers ascertain who their top 10 largest referral sources are, and really focus their efforts on getting those referral sources on board with the face-to-face requirement.
“As well as differentiating referral sources that have been historically challenging to deal with,” she advises, noting that providers might have to make some tough calls. “They’re going to know off the top of their heads, ‘Who is like pulling teeth to get information from?’ Then they have to be really cognizant of the fact that one of your viable options is saying, ‘No’ and not taking that referral.”
And what do providers do for claims that might have been put into jeopardy given the latest announcement from CMS regarding the detailed written order? Riley says that for any past claims, providers might have to wait and see.
“I think we have to wait until we get some more clarification,” she says. “There’s going to have to be some direction.”
If there’s one thing van Halem wants to make sure providers understand, it is that they must act now. His summary is succinct: “Delayed enforcement does not mean delayed requirement.”