In January 2015, the Centers for Medicare & Medicaid Services (CMS) released proposed “voluntary” templates for physicians to document face-to-face encounters for home health patients. On Feb. 11, 2015, CMS held an open door forum to address the proposed templates and to receive comments on them from the home health industry.

The face-to-face encounter requirement provides that the certifying physician or a non-physician practitioner has an encounter with the patient 90 days before or 30 days after the start-of-care date. The encounter requirement (in particular, the brief narrative requirement that requires the certifying physician to document the reasons for skilled services and the beneficiary’s homebound status) has been extremely burdensome for home health agencies and certifying physicians.

Although only beginning with start-of-care dates on and after Jan. 1, 2015, CMS eliminated the brief narrative requirement in most circumstances and imposed a new requirement that the certifying physician’s own documentation must support the need for skilled services and the beneficiary’s homebound status. The proposed voluntary templates for physicians to document their face-to-face encounters with home health patients are intended by CMS to meet these documentation requirements. 

During the open door forum, CMS officials explained that the proposed templates are voluntary, and merely in the development stage. Indeed, multiple times during the forum, CMS representatives stated that it would take commenters’ suggestions into consideration while editing the templates. One of the repeated concerns addressed a previous CMS statement that the voluntary templates could serve as the physician’s documentation to support their evaluation and management (E&M) services and the home health certification. Commenters pointed out to CMS that the voluntary forms were not drafted with a focus on compliance with E&M documentation requirements. Therefore, commenters suggested that the forms should be more detail-oriented to satisfy both requirements – lest physicians be required to complete two forms for one patient encounter.

Although CMS responded to some callers’ comments and questions, many of the questions were deflected until the next open door forums, which are scheduled for March, April, and May 2015. Many of the deflected questions revolved around workflow issues, such as when it is acceptable for a person other than the certifying provider (for example a hospital staff member) to fill in the information in the form.

These questions likely stemmed from issues involving the new rules effective Jan. 1, 2015 that allow home health agencies to provide the certifying physician with information that corroborates and supports the information in the physician’s record – as long as the physician signs off on the supporting documentation. Home health agencies and facilities with home health services should listen to the upcoming open door forums on March 11, April 8, and May 6 for clarification on this issue.

Although there are mixed reviews of the proposed voluntary templates, once CMS finalizes a voluntary template, use of it could be helpful to home health agencies in the event of an audit finding determining that the physician’s documentation did not support the need for skilled services or homebound status.

Specifically, the forms should help enhance compliance with regulatory requirements as well as support provider defenses such as waiver of liability and provider without fault. Again, we very much encourage you to listen to the future open door forums to continue to learn more about CMS’s position on this evolving process.

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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