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Andrew Wachler Esq.

Pursuant to the calendar year (CY) 2015 Home Health Final Rule published by the Centers for Medicare & Medicaid Services (CMS) on Nov. 6, 2014, effective Jan. 1, 2015 new rules for home health agencies face-to-face encounter documentation were implemented. 

One of the most notable revised rules was the elimination of the brief narrative requirement in almost all cases for home health face-to-face encounter documentation.  The home health industry accepted this revision with open arms as the brief narrative requirement had become the most common and most controversial claim denial rationales by Medicare auditors. 

In the Final Rule, CMS announced that the new requirements would require supporting documentation from the certifying physician’s medical record to support the certification of a patient’s homebound status and need for skilled services, in addition to the other home health certification requirements.  CMS encouraged home health agencies in the Final Rule to obtain as much documentation from the certifying physician’s medical record “…as they deem necessary to assure themselves that the Medicare home health patient eligibility criteria have been met and must be able to provide it to CMS and its review entities upon request.”[1]

CMS also provided in the Final Rule that a home health agency may communicate with and provide information to the certifying physician about the patient’s homebound status and need for skilled care and for the certifying physician to incorporate the information into his or her medical record for the patient.  This was contingent on the certifying physician reviewing and signing off on the home health agency’s information incorporated into the certifying physician’s medical record and that the information from the physician’s medical record corroborated the information from the home health agency.[2]

On Dec. 16, 2014, CMS held a MLN Matters National Provider Call to discuss certifying patients for Medicare home health benefit and provide guidance regarding the new face-to-face rules to be implemented January 1, 2015.[3] 

During the call, a CMS representative went through four examples of documentation from a physician to meet the home health face-to-face certification requirements. The fourth example discussed by CMS provided, “…an idea as to how to bring together information from the physician’s record with information from the home health agency’s record.”[4]  In this example, the physician’s face-to-face encounter was documented in a discharge summary from a hospital.[5]  The physician’s discharge summary document met four of the requirements, but it did not meet the homebound description requirement.  CMS highlighted in the call that the discharge summary documents that the patient had a total left knee arthroplasty and that the patient required physical therapy.  The CMS presenter then turned to a home health agency excerpt of the fictional patient’s comprehensive assessment, or OASIS.[6] The OASIS document included information sufficient for describing the patient’s homebound status.  The CMS presenter stated that the information from the home health agency had been incorporated into the physician’s record because it had been signed and dated by the patient’s physician.[7]  Furthermore, the information from the physician’s discharge summary and the OASIS excerpt corroborated one another.[8]  Therefore, they met the requirements as outlined in the Final Rule.

However, during a Special Open Door Forum held on March 11, 2015 to discuss proposed voluntary physician progress note templates aimed to assist certifying physicians with accurately documenting the home health certification, CMS provided information that contradicted the guidance provided in the Nov. 6 Final Rule and the Dec. 16 National Provider Call. During the Special Open Door Forum, CMS stated that although a home health agency may send information to a physician and the physician may include that information in his/her medical record, the physician’s medical record that the Medicare auditors will be looking at must have information to support homebound and need for skilled services, independent of the home health agency documentation.[9]  A CMS physician on the March 11 call stated that even if a certifying physician signs and dates a home health agency’s documentation that does not mean that the documentation becomes part of the physician’s medical record. This instruction is different from information previously provided to home health agencies and certifying physicians.  

Although CMS previously stated that information in the physician’s medical record should corroborate the information provided by the home health agency, during the Special Open Door Forum, CMS’ instructions indicated that the physician’s medical record on its own must support homebound status and need for skilled services.  We reached out to CMS for confirmation that the language in the Final Rule and the Dec. 16 National Provider Call is the correct guidance for home health agencies and certifying physicians to follow.  CMS has advised that they will provide a formal response.  Home health agencies and certifying physicians should carefully monitor their compliance with the new face-to-face encounter documentation requirements and follow any new developments regarding CMS’ guidance on this issue.  To that end, CMS’ next Special Open Door Forums on this issue will be held on April 8, 2015 at 1p.m.EDT and May 6, 2015 at 1p.m.EDT.

We encourage all interested parties to attend. 

About the Authors

Andrew B. Wachler is the principal of Wachler & Associates, P.C.  He graduated Cum Laude from the University of Michigan in 1974 and was the recipient of the William J. Branstom Award. He graduated Cum Laude from Wayne State University Law School in 1978. Mr. Wachler has been practicing healthcare and business law for over 25 years and has been defending Medicare and other third party payor audits since 1980.  Mr. Wachler counsels healthcare providers and organizations nationwide in a variety of legal matters.  He writes and speaks nationally to professional organizations and other entities on a variety of healthcare legal topics.

Jessica Forster is an associate at Wachler & Associates, P.C.  Ms. Lange dedicates a considerable portion of her practice to defending healthcare providers and suppliers in the defense of RAC, Medicare, Medicaid and third party payer audits.  Her practice also includes the representation of clients in Stark, anti-kickback, and fraud and abuse matters.

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[1] Id.

[2] Id.

[3] CMS MLN Connects National Provider Call, Certifying Patients for the Medicare Home Health Benefit, December 16, 2014, Written Transcript.  Available at: http://www.cms.gov/Outreach-and-Education/Outreach/NPC/Downloads/2014-12-16-HH-Benefit-Transcript.pdf.  Last accessed: March 16, 2015. 

[4] Id. at 14.

[5] Id. at 15. 

[6] Id. at 16. 

[7] Id. at 16.

[8] Id.

[9] Please note that at the time of publishing, the written transcript for the March 11, 2015 Special Open Door Forum was unavailable.  However, when it becomes available it will be at: http://www.cms.gov/Outreach-and-Education/Outreach/OpenDoorForums/ODFSpecialODF.html


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