Noncompliance with the recently enacted face-to-face certification requirements is one of the newest compliance risk areas that could lead to denials in future audits for home health agencies. The face-to-face requirements are part of the Patient Protection and Affordable Care Act of 2010 (PPACA), and they require physicians to perform face-to-face encounters on home health patients as part of home health certification. While the PPACA originally required compliance with this mandate by Jan. 1, 2011, CMS recently announced that it will delay enforcement until April 1, 2011.

In order to satisfy the face-to-face requirements, certain criteria must be met. First, encounters must take place no more than 90 days prior to or within 30 days after the start of home health care services. Encounters may occur up to 90 days prior to this point if a previous face-to-face encounter was related to the reason the patient requires home health services. Also, this encounter must be performed by a physician or a permissible non-physician practitioner (NPP), i.e., an advanced practice nurse or physician assistant. If an NPP performs the face-to-face encounter, the practitioner must document the clinical findings and communicate those findings to the certifying physician. The documentation of the face-to-face encounter must be a separate and distinct section or addendum to the certification, and must be signed and dated by the certifying physician.

Both physicians and NPPs who have a financial relationship with a home health agency are prohibited from conducting the face-to-face encounters unless the relationship falls within a Stark or anti-kickback exception. This regulatory requirement prevents home health agencies from hiring physicians or NPPs to perform face-to-face encounters, representing an important consideration for a home health agency setting up a program for compliance with the new requirements.

Documentation of the face-to-face encounter must include a statement demonstrating that the encounter was performed for the same condition or conditions that represent the primary reason for home care services. In addition, the documentation must include an explanation of the reasons for the patient’s homebound status and the medical necessity of either intermittent skilled therapy and/or skilled nursing services. Also, it is important to note that for patients referred directly from a hospital, a hospitalist could conduct the face-to-face encounter. To qualify, the hospitalist would need to document the encounter, perform the certification and review of the initial plan of care, and then clearly communicate the name of the physician in the community (i.e., the patient’s primary care physician) who will continue to follow up with the patient going forward. In rural areas, the face-to-face encounter also may be conducted via telehealth services as long as other program requirements are met for telehealth.

CMS has indicated that it will issue instructions to its contractors with regard to medical reviews and program integrity activities. These contractors will be tasked with making sure that providers are complying with the required time frames set forth for the face-to-face encounters. CMS also has indicated that partial payments will not be made if the face-to-face encounters are performed outside the required time frames.

Physicians and home health agencies should note that the face-to-face encounter only is required for the initial certification and not for any subsequent recertification.

In developing compliance policies, home health agencies should review all guidance from CMS and contractors on this issue to ensure that documentation is adequate. Home health agencies also should collaborate proactively with referring physicians and educate them to ensure that they also understand the requirements prior to the April 1, 2011 effective date.

About the Authors

Amy K. Fehnis a partner at Wachler & Associates, P.C. Ms. Fehn is a former registered nurse who has been counseling healthcare providers for the past eleven years on regulatory and compliance matters and frequently defends providers in RAC and other Medicare audits.

Jennifer Colagiovanni is an attorney at Wachler & Associates, P.C. Ms. Colagiovanni graduated with Distinction from the University of Michigan and Cum Laude from Wayne State University Law School. Upongraduation, Ms. Colagiovanni was nominated to the Order of the Coif. Ms. Colagiovanni devotes a substantial portion of her practice to defending Medicare and other third party payer audits on behalf of providers and suppliers. She is a member of the State Bar of Michigan Health Care Law Section.

Contact the Authors

ED. NOTE: Healthcare attorney Andrew Wachler, founder of Wachler & Associates, discusses RACs and Home Health on Monitor Monday, March 14, 2011. Register to listen at

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