NAHC Receives Clarification on CMS Policies for Home Health Agencies

WASHINGTON, D.C. (March 2, 2021)—The National Association for Home Care & Hospice (NAHC) has received additional clarification on Medicare coverage policies for home health agencies.

NAHC has reported on responses from the Centers for Medicare & Medicaid Services (CMS) on several key outstanding question. In that report NAHC noted follow-up was needed on two of CMS’s responses.

The first question in the report addressed the inconsistency in the regulations and the statute for the face-to-face requirements for home health certifications. CMS recognizes that the statutory language in the Coronavirus Aid, Relief, and Economic Security (CARES) Act provides more flexibility than the regulations on who may conduct the face-to-face encounter, however, the regulations and manual instructions have not been updated to reflect these flexibilities. This lead NAHC to conduct an inquiry of the Medicare Administrative Contractors (MACs) regarding which policies are being followed when reviewing for compliance with the F2F encounter.

According to all three MACs, they continue to follow the manual instructions in the Medicare Benefit Policy Manual, chapter 7, section 30.5.1.1 which states:

30.5.1.1 – Face-to-Face Encounter
1. Allowed Provider Types As part of the certification of patient eligibility for the Medicare home health benefit, a face-to-face encounter with the patient must be performed by the certifying physician or allowed practitioner himself or herself, a physician or allowed practitioner that cared for the patient in the acute or post-acute care facility (with privileges who cared for the patient in an acute or post-acute care facility from which the patient was directly admitted to home health) or an allowed non-physician practitioner (NPP).

NPPs who are allowed to perform the encounter are:

• A nurse practitioner or a clinical nurse specialist working in accordance with State law and in collaboration with the certifying physician or in collaboration with an acute or post-acute care physician, with privileges, who cared for the patient in the acute or post-acute care facility from which the patient was directly admitted to home health;
• A certified nurse midwife, as authorized by State law, under the supervision of the certifying physician or under the supervision of an acute or post-acute care physician with privileges who cared for the patient in the acute or post-acute care facility from which the patient was directly admitted to home health;
• A physician assistant under the supervision of the certifying physician or under the supervision of an acute or post-acute care physician with privileges who cared for the patient in the acute or post-acute care facility from which the patient was directly admitted to home health.

NPPs performing the encounter are subject to the same financial restrictions with the HHA as the certifying physician, as described in 42 CFR 424.22(d)

NAHC recommends that HHAs follow the manual instructions until such time that CMS revises the regulations and manual instructions to conform with the provision in the CARES Act for the home health F2F encounter.

The second question that required further clarification relates whether allowed NPPs may order private duty nursing under Medicaid. CMS clarified that the statutory changes only addressed the home health benefit under Medicaid and not the private duty nursing benefit.

NAHC recently submitted the following question to CMS seeking clarification regarding an apparent conflict in the Medicare Manual related to a who may sign the home health plan of care.

In the following manual section from the Medicare Benefits Policy Manual, CMS limits who may sign the POC to practitioners in a group practice. However, not all practitioners work within a group practice and/ or may prefer to authorize other practitioners to sign orders.

The second manual section, excerpted from the Medicare General Information, Eligibility, and Entitlement manual, permits such, in that one physician may authorize another physician to sign the POC in his/her absence. This has always been understood to apply to the original POC (absent the certification for eligibility statement) and any interim orders.

The two manual sections raise several questions.

1) Should section 30.1 in the Medicare General Information, Eligibility, and Entitlement Manual be revised to include “allowed practitioners”?
2) How do HHAs reconcile the different manual instructions related to who is permitted to sign the home health POC?
3) Since the “POC” includes interim orders may any practitioner authorized by the practitioner who established the POC sign interim orders?

Medicare Benefits Policy Manual , chapter 7, 30.5.3 – Who May Sign the Certification or Recertification

The physician or allowed practitioner who signs the certification or recertification must be permitted to do so by 42 CFR 424.22. A physician or allowed practitioner in the same group practice as the certifying physician or allowed practitioner who established the home health plan of care and the certification/recertification statement, may sign in place of the physician or allowed practitioner when he/she is unavailable. The HHA is responsible for ensuring that the physician or allowed practitioner who signs the plan of care and certification/recertification statement practices in the same group practice as the physician or allowed practitioner who established the plan of care and completed the certification. The physician or allowed practitioner that performed the required face-to face encounter must sign the certification of eligibility, unless the patient is directly admitted to home health care from an acute or post-acute care facility and the encounter was performed by a physician or allowed practitioner in such setting

Medicare General Information, Eligibility, and Entitlement Manual, Chapter 4 – Physician Certification and Recertification of Services.
30.1 – Content of the Physician’s Certification

Certifications must be obtained at the time the plan of care is established or as soon thereafter as possible. The physician must sign and date the plan of care (POC) and the certification prior to the claim being submitted for payment; rubber signature stamps are not acceptable. The plan of care may be signed by another physician who is authorized by the attending physician to care for his/her patients in his/her absence. While the regulations specify that documents must be signed, they do not prohibit the the transmission of the POC, oral order, or certification via facsimile machine. The HHA is not required to have the original signature on file. However, the HHA is responsible for obtaining original signatures if an issue surfaces that would require verification of an original signature.

CMS noted the conflict in the policy manual and responded with the following:

“We note that Chapter 7 of the Benefit Policy Manual does include erroneous language regarding who may sign the POC. We do plan on correcting this language as soon as possible, as well as updating the language in Chapter 4 of the Medicare General Information, Eligibility, and Entitlement manual.”

“In the meantime you can refer providers to the FAQs found in the program guidance and information on the CMS.gov website about our response to COVID-19. We state that the home health conditions of participation do not prohibit home health agencies (HHAs) from accepting orders from multiple physicians, and now with the recent statutory change, nurse practitioners, physician assistants, and clinical nurse specialists (i.e., allowed practitioners). The HHA is ultimately responsible for the plan of care, which includes assuring communication with all physicians and allowed practitioners involved in the plan of care and integrating orders from all physicians/allowed non-physician practitioners involved in the plan to assure the coordination of all services and interventions provided to the patient. This responsibility extends to a physician or other allowed non-physician practitioner, other than the certifying physician or allowed non-physician practitioner who established the home health plan of care, who signs the plan of care or the recertification statement in the absence of the certifying physician or allowed non-physician practitioner. This is only permitted when such physician or non-physician practitioner has been authorized to care for his/her patients in his/her absence. The HHA is responsible for ensuring that the physician or allowed non-physician practitioner who signs the plan of care and recertification statement was authorized by the physician or allowed non-physician practitioner who established the plan of care and completed the certification for his/her patient in his/her absence. Our regulations at 42 CFR 424.22(a)(1)(v)(A) require that the physician or allowed practitioner that performed the required face-to-face encounter also sign the certification of eligibility, unless the patient is directly admitted to home health care from an acute or post-acute care facility and the encounter was performed by a physician or allowed practitioner in such setting.”

“Please note that this does not limit who may sign the POC to practitioners in the same group practice. This FAQ can be found here.”

NAHC will continue to seek clarification from CMS where there are conflicts and confusion in the statute, regulations and manual instructions.