Recent OIG Report Underscores Need for Home Health Agencies and Physicians to Comply With Medicare’s Face-to-Face Documentation Requirements

by BakerHostetler

Medicare overpaid the home health industry $2 billion between January 2011 and December 2012, according to a recent report by the U.S. Department of Health and Human Services, Office of Inspector General (OIG). The OIG’s findings are based on a random sample review of claims submitted by home health agencies (HHAs) around the country—in particular, the OIG alleges there was no or insufficient physician face-to-face encounter documentation for 32 percent of the reviewed claims. Notably, while federal regulations require HHAs to obtain and retain physician face-to-face documentation as a condition of payment, the OIG’s report signals that referring physicians likewise are expected to complete the documentation in accordance with such regulations.

The Face-to-Face Requirement

As background, the face-to-face documentation requirement is included in anti-fraud regulations arising out of the ACA. As of January 1, 2011, for an initial home health episode of care only, the patient’s referring physician or nonphysician practitioner must document that he or she saw the patient and, based on the encounter, certifies that home health services are medically necessary for the patient. The Centers for Medicare and Medicaid Services (CMS) does not require a specific form to document the encounter, provided the document includes the following elements: (1) a title reflecting that the document constitutes the face-to-face encounter, (2) the date of the encounter, (3) the physician’s signature and date of signature, and (4) a brief narrative of clinical findings from the encounter to support the need for skilled services to treat the patient’s illness or injury and an explanation as to why the patient is homebound. The HHA must obtain a copy of the completed face-to-face document from the referring physician but, if the physician did not complete it correctly, CMS can deny payment for subsequent services provided by the HHA.

OIG’s Review Findings

Among others, the review identified a pattern of incomplete physician narrative content concerning the need for skilled services and homebound status. Regarding the need for skilled services, the OIG observed phrases, such as “family is asking for help,” “diabetes” and “patient unable to do wound care.” To explain homebound status, approximately 30 percent of the documents included the statements “weakness/fatigue” or “unable to leave home unassisted.” Another 17 percent contained the statement “taxing effort to leave the home.” Per the report, CMS issued guidance in February 2013 providing examples to show that the narrative must include clinical findings from the encounter as opposed to the foregoing general descriptions.

Based on its findings, the OIG recommended that CMS (1) consider a standardized face-to-face form to ensure physicians include all elements of the requirement, (2) communicate directly with physicians about the requirement, and (3) work with its contractors to develop other review procedures to ensure compliance. CMS concurred with all three recommendations. In particular, CMS plans to issue additional education materials to assist physicians in complying with the face-to-face requirement. Furthermore, CMS will have its Supplemental Medical Review Contractor conduct document-only reviews for every HHA in the country to validate a sample of face-to-face encounters.

Impact on HHAs and Physicians

HHAs should be on notice that CMS, through its contractors, intends to increase its audit activity around the face-to-face requirement, with a focus on the required clinical narrative discussed above. Nonetheless, there may be some silver lining for HHAs previously unclear about the level of detail expected in the narrative. As an initial matter, the OIG report tends to concede that it was not until February 2013 that CMS issued any guidance as to the expected level of detail in the narrative. This may offer an argument that claims prior to February 2013 should not be scrutinized as closely as those submitted afterwards. In addition, HHAs should consider collaborating with referring physicians to supplement existing face-to-face documentation, in accordance with CMS’s guidance on attestation statements, to ensure any potential audit accurately reflects the need for the home health services provided.

Moreover, the OIG’s report addresses the balancing act often encountered by HHAs—namely, the need to begin and be paid for services while also ensuring physicians are providing adequate documentation. In justifying the need for physician training, the OIG acknowledged that “HHAs, which are required to obtain the face-to-face documents in order to receive payment, have no authority to compel physicians to complete and sign the documents.” Though the adequate completion of face-to-face documentation is currently not a condition of payment for the physician’s billable office visit for the encounter, the OIG’s report indicates physicians still are responsible for complying with the face-to-face requirement. Thus, rather than waiting for CMS’s direct outreach efforts, we recommend physicians begin working with their staff and the HHAs to which they refer patients to increase awareness regarding CMS’s expectations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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