«DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 409, 424, and 484 [CMS-1560-F] RIN 0938-AP55 Medicare ...»
larger backlogs, which in turn will further delay the ability of HHAs to obtain a survey or accreditation in a prompt fashion.
One commenter stated that it will be impossible for State survey agencies and accrediting bodies to resurvey 2,000 CHOWs that CMS reports occur annually.
Response: We understand the commenters’ concern regarding workload implications for State survey agencies and deemed accrediting organizations. We believe that HHAs undergoing an ownership change or having their billing privileges reactivated must meet the conditions of participation and other program requirements in order to participate in the Medicare program.
Comment: One commenter recommended that CMS appropriately fund State agencies to handle the increased survey workload.
Response: As stated above, we understand the workload implications for State agencies and deemed accrediting organizations. Moreover, we are aware of the potential funding issues raised by the commenter.
Comment: One commenter stated that CMS must reevaluate its projections for the number of HHAs that will be impacted by the proposed CHOW requirements (2,000) and deactivation requirements (2,000). If these numbers are correct, CMS’ proposals will
Response: We believe that the projections contained in the proposed rule are accurate and that the final rule is sufficiently clear as to the number of surveys that would have to be performed.
Comment: One commenter supported the proposed changes regarding space-sharing and changes of ownership, and added that CMS should begin even more active enforcement. This should include ensuring that all new enrollment applicants have a timely, thorough on-site review of clinical, operational and financial policies and processes prior to being granted enrolled status.
Response: We appreciate the commenter’s support and note that we are undertaking a number of efforts to reduce fraud and abuse.
Comment: One commenter made a number of recommendations to CMS with respect to the combating of fraudulent activity in the HHA arena. These included: (1) expanding educational efforts regarding compliance; (2) establishing a federal requirement that administrators of home health are credentialed by a nationally recognized body; (3) establishing certification
moratorium on new HHAs; and (5) working with the industry to ensure that reports of fraudulent activities are acted upon promptly.
Response: We appreciate these suggestions and will take them under advisement.
Comment: One commenter suggested that CMS: (1) enhance the Provider Enrollment, Chain and Ownership System (PECOS) to automatically identify HHAs located at the same practice location; (2) update section 12 of the CMS-855A form to include questions regarding office space, similar to the questions contained on the CMS-855B application for physical therapy and occupational therapy groups; and (3) perform site visits for some new providers.
Response: We appreciate these suggestions and will take them under advisement, though we note that CMS has increased the number of site visits it performs in certain high-risk areas for new and existing HHAs.
Comment: One commenter suggested that we describe the method by which HHAs can consolidate under one provider number without financial consequence, and that CMS allow HHAs that intend to consolidate up to 12 months to do so.
agencies at the same location can voluntarily terminate a provider agreement and merge the multiple HHAs into a single organization.
Comment: One commenter suggested that the intent of the States in requiring a prospective Medicaid provider to be enrolled in and certified by Medicare was to pass on the cost of the survey and certification of Medicaid-only agencies to the Federal Government and suggested that CMS resolve this with the States.
Response: We believe that this comment is outside the scope of this final rule.
Comment: One commenter asked for clarification on how HHAs are to be notified when their Medicare billing privileges are deactivated.
Response: In the event a claim is submitted after 12 consecutive months of non-billing, the claims processing system will place a message on the remittance notice stating “This provider was not certified/eligible to be paid for this procedure/service on this date of service.” We do not expect that this message will be implemented until CY 2010.
Based on the public comments, we are adopting the
• We are not adopting §424.530(a)(8) in this final rule.
• We are not adopting §424.535(a)(11) in this final rule.
• We are not adopting 489.12(a)(5) in this final rule.
• We are not adopting 489.19(a) in this final rule.
• We are not adopting 489.19(b) in this final rule.
• We proposed to exclude HHAs from the existing language in §424.540(b)(3), which states that the reactivation of Medicare billing privileges does not require a new certification of the provider or supplier by the State survey agency or the establishment of a new provider agreement. We have decided not to include this proposed revision to §424.540(b)(3) in the final rule. We are also making it clear that under proposed §424.540(b)(3)(i), which is included in the final rule, an HHA undergoing a change of ownership within the first 36 months after its enrollment remains Medicare-certified and that its provider agreement has not been revoked. The deactivated HHA’s certification, provider agreement, and status as an enrolled HHA remain intact. However, it must obtain a new survey or accreditation.
H. Physician Certification and Recertification of the Home Health Plan of Care
Sections 1814(a)(2)(C) and 1835(a)(2)(A) of the Act require that a plan for furnishing home health services be established and periodically reviewed by a physician in order for Medicare payments for those services to be made. Our regulations at §409.43(e) specifically state that a home health POC must be reviewed, signed, and dated by the physician who reviews the POC (as specified in §409.42(b)) in consultation with agency clinical staff at least every 60 days (or more frequently as specified in §409.43(e)(1). Additionally, §424.22(b) states that a recertification is required at least every 60 days, preferably at the time the plan is reviewed, and must be signed by the physician who reviews the home health POC. These schedules, for the review of the POC and the recertification, coordinate with the 60-day episode payment unit under the HH PPS. In implementing the statutory requirement as well as these regulations, we believed that these requirements would encourage enhanced physician involvement in the HH POC and patient management, and would include more direct “in-person” patient encounters (as logistically feasible).
Currently, physicians are paid for both the certification and recertification of the HH POC under HCPCS codes G0180 and
physician services is the relative resources in RVUs required to furnish these services. We believe physician involvement is very important in maintaining quality of care under the HH PPS.
In the HH PPS proposed rule published in the October 28, 1999 Federal Register (64 FR 58196), we had proposed to require the physician to certify the case-mix weight/home health resource group (HHRG) as part of the required physician certification of the POC. This reflected our belief that the physician should be more involved in the decentralized delivery of home health services. However, in the final rule published in the July 3, 2000 Federal Register (65 FR 41163), we did not finalize that proposal and decided to focus our attention on physician certification and education in order to better involve the physician in the delivery of home health services.
b. Solicitation of Comments It has come to our attention that physician involvement in the certification and recertification of HH POC varies greatly.
While some physicians have direct contact with their patients in the delivery of home health services, we believe that a significant number of physicians provide only a brief, albeit thorough, review of the HH POC, without any direct contact with
the physician, including “in-person” contact with the patient, during the certification and recertification of the HH POC is essential for the delivery of high quality HH services.
In the Physician Fee Schedule proposed rule published in the July 7, 2008 Federal Register (73 FR 38578), we mentioned several options to enhance direct contact between the physician and the patient. First, we considered a review of the RVUs associated with the certification and recertification of the HH POC. As a result of that review, the payment amounts to physicians could be reduced based on a more accurate determination of the actual RVUs required to provide these services. We also considered proposing new requirements; for example, a requirement for “direct” patient contact with the physician, to ensure more active physician involvement in the certification and recertification of the HH POC. We specifically solicited comments on these policy options.
In the November 19, 2008 final rule, we expressed our appreciation for the comments and responded that we would continue to analyze and consider the comments and suggestions in future rulemaking. Additionally, as a result of comments received on the above physician rule, as they relate to
requiring physicians to make phone calls to patients at various times over the course of home health treatment (prior to recertification), as a means to promote that physician-patient contact and to help ensure the delivery of high quality HH services to our beneficiaries.
In the HH PPS proposed rule for CY 2010, we specifically solicited additional comments on this topic.
Comment: While commenters agreed that increasing physician involvement in home health patient care was a positive step, they were not supportive of requiring a face-to-face encounter between patients and physicians, or of requiring telephone contact, prior to physician certification or recertification of the plan of care. Some felt this would be burdensome to physicians and would create a significant barrier to patients seeking home health services. Several pointed out that there was no analysis to suggest that face-to-face or telephone encounters would improve outcomes, and questioned the value of such a requirement, given its cost. A few mentioned that the underlying problem was inadequate payment to physicians; some stated that without reimbursement, physicians were not likely to be cooperative; one wrote that this suggestion did not address
patients at home.
One commenter wrote that the level and frequency of physician contact with patients should be determined by the physician, based on the patient’s medical needs. A few commenters noted that such a requirement would interfere with the professional judgment of the physician, failed to recognize that nurses and therapists provide OASIS assessment of all patients prior to physician certification, and noted that homebound, infirm or disabled patients should not be forced to leave home for a doctor’s visit. They noted that leaving home may be a considerable and taxing effort for homebound patients, especially in rural areas, when there are weather issues, or where patients have no caregiver or transportation. One commenter asked what would happen if the patient refused to go.
Several commenters pointed out that existing laws already establish serious criminal and civil sanctions for physicians who knowingly and falsely certify that a patient is homebound and needs home health. Additionally, they stated that there are no reports of quality of care problems related to the absence of a face-to-face physician encounter.
While a telephone contact could be more convenient,
confirm to the physician that the patient exists and possibly hear the patient express things about his or her condition or needs. They noted that it would be difficult for the home health agency to validate that a call actually occurred if the agency were not a direct party to it. Others noted that physicians would have to make such calls after hours, given their busy schedules, and this could be disruptive to homebound patients, many of whom are elderly and retire early.
A commenter mentioned that some beneficiaries don’t have telephones, particularly in remote rural areas. Another wrote that patients could barely get needed prescriptions called in timely. Some commenters also wrote that requiring an encounter could be a serious claims processing issue, akin to the former M0175 component of the HHRGs. Commenters believed that the agency would not be in a position to consistently or comprehensively understand the encounters.
Commenters suggested a number of alternatives. One commenter felt the best approach to involving physicians more in home care is in new models of chronic care management that integrate primary care practices committed to home-based care with home health agencies in a single, consolidated chronic care
Medicare Advantage patients, and welcomes the opportunity to develop a demonstration program.