CMS Updates Face-to-Face Requirements

On November 16, 2012 CMS issued a final rule titled “Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule, DME Face-to-Face Encounters, Elimination of the Requirement for Termination of Non-Random Prepayment Complex Medical Review and Other Revisions to Part B for CY 2013”. This final rule was written to implement the statutory provision at Section 1834(a)(11)(B) of the Social Security Act that established requirements for a face-to-face encounter and written orders prior to delivery for certain items of DME (77 Federal Register 68892). CMS developed a list of DME items subject to the Face-to-Face encounter requirements created by the rule. These requirements may be found in the Code of Federal Regulations 42 CFR § 410.38(g). The list of DME items subject to Face-to-Face Encounter requirements may be found here.

The law originally required a physician to document that a physician, nurse practitioner, physician assistant or clinical nurse specialist had a face-to-face encounter with the patient. The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) eliminated the requirement for physicians to document face-to-face encounters conducted by allowed nurse practitioners, physician assistants, or clinical nurse specialists. As revised by MACRA, a physician, nurse practitioner, physician assistant or clinical nurse specialist must document they have written the order for DME pursuant to a face-to-face encounter with the patient. The encounter must occur within the 6 months before the order is written for the DME.

CMS will not start actively enforcing or expect full compliance with the DME face-to-face requirements until further notice. The delay of enforcement only applies to the face-to-face requirements in CFR §410.38(g)(3). CMS expects full compliance with the remaining portions of the regulation. The DME Medicare Administrative Contractors (MACs) began enforcing the detailed written order requirement as of January 1, 2014. The delay in enforcement on the face-to-face encounter requirements applies to reviews conducted by the DME MACs, Recovery Auditors, the Zone Program Integrity Contractors (ZPICs) and Program Safeguard Contractors (PSCs). The delay in enforcement does not apply to reviews completed by the Comprehensive Error Rate Testing Program (CERT). CERT must review claims in accordance with all Medicare policies to produce an unbiased improper payment rate.

CMS will continue to address industry questions concerning the new requirements and will update information on our web site at www.cms.gov/medical-review. CMS and its contractors will also use other communication channels to ensure that the provider and supplier community is properly informed of this announcement.