How to Reduce Risk of Audit Using the Face-to-Face Rule

Understand this directive and its effects on your business

Before we delve into the background of the Face-to-Face (FTF) regulation, I want to plant the seed that in today’s audit-heavy environment, most businesses are already 75 to 90 percent in compliance with what the rule requires of you. While not without frustrations, this is also a change that providers should embrace to make your operations more effective, instead of defaulting to the presumption that this is yet another change that moves us to fight or resist. This article will lay out the basic principles—then it is up to you to decide how you will approach implementation within your organization.

On Nov. 1, 2012, CMS posted the final rule to implement Face-to-Face (FTF) requirements for DME. In the proposed rule, CMS originally suggested the rule to go into effect on Jan. 1, 2013. However, the official implementation date via the final rule set Jul. 1, 2013, for implementation.

However, 30 days before implementation, CMS announced a delay in the enforcement of the final rule until Oct. 1, 2013 because some providers needed additional time to comply. Before it was all said and done, CMS posted yet another press release on Sept. 9, 2013, announcing that the enforcement deadline would be pushed back once again. This time, CMS is not committing to an official deadline; rather, they directed providers that enforcement of FTF compliance will begin “… by a date that will be announced in calendar year 2014.”

While the press releases cite provider struggles as a driving factor, it makes no mention of CMS’s contributory role. Struggles to put procedures in place to accommodate this ruling have been largely due to the lack of education produced by CMS. The first piece of education was released on May 31, 2013, via MLN Matters article MM8304, which was quickly distributed by the DME MACs in an effort to educate providers.

However, MM8304 had to be revised within 30 days of publication due to the fact that it did not speak to all of the core changes implemented by the Face-to-Face rule, primarily as it relates to the requirement of written orders. Furthermore, the publication gave no additional insight beyond the basic tenants of the rule, and to date, many questions still remain unanswered.

Despite the non-specific delay in enforcement, providers must still consider what implementation will look like for their business. It is important to note that a delay in enforcement is not the same as rescinding implementation or delaying the rule itself. Therefore, we must begin with what we do know and make good faith efforts at moving forward with compliance.

The crux of the rule mandates that in order for certain items of medical equipment to be payable by Medicare, the patient must have an office visit/FTF to document why the equipment is necessary before the equipment can be prescribed or delivered. While the FTF must occur before delivery, the visit can take place up to six months before the service is rendered (unless the LCD specifically mandates stricter guidelines as is the case with power mobility devices (PMDs) and the 45-day window). This is an obligatory mandate.

If the patient goes after the service date, the original delivery is not payable. In the proposed rule, CMS originally suggested allowing a 90-day-before/30-day-after window for the FTF to occur. In the final rule, they extended the “before-window” and eliminated the “after-window.”

The final rule also stipulates that only a doctor of medicine (MD) or a doctor of osteopathic medicine (DO) can officially document that a FTF visit has occurred. While Physician Assistants (PAs), Nurse Practitioners (NPs) and Clinical Nurse Specialists (CNSs) can still legally order DME and conduct FTF visits, under this rule for the specified products the visit is considered incomplete/invalid without an MD or DO documenting that the visit occurred (via a legible signature or co-signature).

Now for the extra hassle of documenting this additional step—the supervising/attending MD or DO will be able to bill an extra fee to Medicare for their trouble. A new HCPCS G0454 will reimburse the physician signing off on a PA, NP or CNS FTF notes. The reimbursement equates to somewhere between $10 and $20 (the fee is based on existing CPT code 99211). This is billable one time per visit regardless of how many items were prescribed. The G code will only be payable if a covered DME item is prescribed.

The physician cannot bill an evaluation and management (E&M) service on the same date and still be eligible for the G code due to the fact that billing should be tied to a PA, NP or CNS office visit. Limiting PAs, NPs and CNSs is the most controversial directive in the final rule. In many states these individuals can operate independently and are not routinely under direct supervision of an MD or DO. Regardless, these entities must seek out an MD or DO to sign off on FTF visits for affected products.

With regard to other clinical specialists and medical professionals, CMS is insistent that only MDs, DOs, PAs, NPs and CNSs can document FTF visit requirements. CMS clarified in the final rule that Clinical Nurse Midwives are not eligible to conduct FTF visits for the purposes of this program, they are a distinct specialty and are not equivalent to Clinical Nurse Specialists.

Additionally, while Physical Therapists (PTs), Occupational Therapists (OTs) and Speech Language Pathologists (SLPs) typically participate in the assessments and evaluation of Medicare beneficiaries, for the purpose of ordering DMEPOS items, they cannot independently document the FTF visit. These directives are not new, and simply reinforce existing regulations.

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