M.D. Update, March 2011
Authored by: Lisa English Hinkle and Molly Nicol Lewis
Because home health and hospice care are so often ordered for patients, physicians should be aware of important new rules about how they must order these services. The Patient Protection and Affordable Care Act ("ACA") established new rules for physician certification of patients' eligibility for home health and hospice services that have now been fleshed out by regulations. While the long-standing requirement for physicians to order and certify the need for home health remains unchanged, new requirements affirm the role of the physician as the person who orders home health care based on the personal examination of the patient. New certification requirements for hospice patients focus on continued patient eligibility, as patients who outlive the initial prognosis of a less than six month life expectancy must be recertified. To certify a patient for either home health or hospice, a physician must now have a face-to-face encounter with the patient.
Home Health Requirements
The new law requires that a physician who certifies a patient as eligible for Medicare home health services must actually see the patient. The new rules also allow the requirement to be satisfied if a non-physician practitioner ("NPP"), like a physician assistant or a nurse practitioner, sees the patient when the NPP is working for or in collaboration with the physician. The new law is intended to stop practices where a home health assessment is provided over the phone to a physician who does not personally affirm the patient's condition.
As part of the certification form itself or as an addendum to it, a physician must document (1) that the physician or NPP saw the patient and (2) how the patient's clinical condition supports a homebound status and need for skilled services. The face-to-face encounter must occur within the 90 days before the start of home health care, or within 30 days after the start of care. This new requirement is meant to assure that the physician's order is based on current knowledge of the patient's condition. When a patient's clinical condition changes such that the primary reason the patient requires home care changes, the original patient-physician encounter will not satisfy the requirement. Instead, another face-to-face encounter is required within two weeks of the start of home care. Even with regulations, how this two-week encounter rule will be applied is unclear.
It is also important for physicians and NPPs to know that, according to agency comments, certification of a patient's eligibility must be documented with a patient's medical record and not on a form provided by a home health agency.
The new rules also allow a physician who attended to the patient in the hospital but who does not follow the patient in the community, such as a hospitalist, to certify the need for home health care based on his or her face-to-face encounter with the patient in the hospital. The hospitalist may also establish and sign the plan of care. Essentially, Medicare will allow hospitalist to initiate the orders for home health services and then hand off the patient to his or her community-based physician to review and approve the plan of care. Finally, in rural areas, the law allows the face-to-face encounter to occur via telehealth in an approved originating site.
Significant changes in the requirements for certification of a patient's eligibility for hospice care have also been made by the ACA and through implementing regulations. To establish eligibility for hospice care, a patient must be considered to be terminally ill with a life expectancy of six months or less. To address concern over determinations of continued eligibility for patients who live longer than 180 days, new requirements for face-to-face encounters have been imposed.
While the criteria have remained the same, the evidence required to document continued eligibility has been changed to include face-to-face encounters. For a patient to be considered terminally ill, the individual's attending physician and the medical director of the hospice provider must certify that the individual has a life expectancy of six months or less. Thereafter, the medical director or a physician member of the hospice team must recertify that the beneficiary is terminally ill at the beginning of each 60- or 90-day eligibility period. The ACA now requires a hospice physician or NPP to have a face-to-face encounter with every hospice patient to determine the continued eligibility of the patient prior to the 180-day recertification and prior to each subsequent recertification. The ACA also requires that each hospice physician or NPP attest that the face-to-face encounter took place. Recertification visits by physicians or NPP must be made not sooner than 15 calendar days prior to the recertification and subsequent recertification deadline. These visit findings must be used by the certifying physician to determine continued eligibility for hospice care.
These changes impose burdensome requirements on hospice providers that do not have physicians on staff to make these face-to-face encounters. Attending physicians will be called upon to perform these assessments for recertification and may be asked to make home visits considering the clinical condition of the patients.
While CMS has announced a delayed enforcement of these rules until the second quarter of 2011, full compliance with the certification requirements for both home health and hospice services is required by April. CMS expects physicians and home health/hospice providers to collaborate and establish internal processes to ensure compliance. While these changes may be considered small in comparison to other ACA changes, these are very important for physicians who are the gatekeepers for patient access to home health and hospice services.
Lisa English Hinkle is a partner of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Hinkle concentrates her practice area in health care law and is located in the firm's Lexington office. She can be reached at firstname.lastname@example.org or at 859-231-8780, ext. 1256.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.