No About-Face on the Face-to-Face

BALTIMORE — In a perplexing turn, CMS issued a proposed rule July 5 that requires a face-to-face exam by a physician who is ordering home health services under Medicaid. The proposal also requires a face-to-face encounter for DME under both Medicare and Medicaid.

Mandated as a provision under the Affordable Care Act, the face-to-face requirement has been in effect for home health agencies billing Medicare since April 1, but CMS has not yet issued the Medicare policy for DME.

"The proposed rule indicates the items that will be subject to the DME face-to-face exam requirement for Medicare will also require a face-to-face exam prior to ordering the items under Medicaid," the American Association for Homecare told members in its weekly newsletter.

The question is, how can CMS mandate that HME providers stick to Medicare face-to-face provisions that have not yet been defined?

"We are trying to get some clarification from CMS and notify providers, because it is definitely confusing," said Stacey Harms, AAHomecare's manager of government affairs. She added that the association has been in discussions with CMS for several months about which DME items should fall under the requirement.

"That's why we were a little shocked," Harms said. "We knew [the face-to-face exam] was going to be applied to home health for Medicaid, but we were surprised that DME was included."

While the health reform law calls for beneficiaries to have a face-to-face exam for all DME, the proposed rule said some items will be exempt under Medicare — those of "small dollar value, and at a decreased risk for fraud, waste, and abuse" — and those items would also not require a face-to-face exam under Medicaid.

CMS said it would issue guidance for states about the items subject to the rule.

For DME that is subject to the Medicare requirement, according to the rule, "the physician must document that a face-to-face encounter that is related to the primary reason the individual requires the item has occurred no more than 90 days before the order is written or within 30 days after the order is written."

Harms said while AAHomecare has heard from some Medicaid agencies that they might make the face-to-face exam retroactive to January, "since Medicare hasn't issued a face-to-face exam [rule for DME providers] yet, I don't think there is anything they can do."

AAHomecare staff spoke with CMS about the status of the DME requirement in June, Harms said, and the agency was not too far into the process then.

"The DME rule is a little ways out, I think," she said.