House Calls

Between 2000 and 2006, the number of physician housecalls to Medicare beneficiaries more than doubled, however, the number of physicians making housecalls declined.  Estimates show that by 2030, 70 million U.S. citizens will be older than 65 years.  A substantial number of persons will live at home with disabilities that prevent them from traveling to medical facilities. 

Home visits made by a physician to a private residence are covered by Medicare, just like regular office visits, when medically reasonable and necessary and not for the convenience of the provider or the member.  While the patient does not have to be homebound, the medical record must document the medical necessity of the home visit made in lieu of an office or outpatient visit.  Follow-up visits may be made by the physician’s nurse practitioner or physician assistant.  Trip fees or travel charges are not compensated by Medicare and other insurance plans, and many physicians charge a separate and additional fee for travel.

Pre-Claim Review by CMS and its contractors is intended to change the face of Home Health

CMS has announced changes to its claim processing for Illinois, Florida, Texas, Michigan and Massachusetts.  The Demonstration is called Pre-Claim Review.  It will change your world.  Pre-Claim Review (PCR) is scheduled to begin in Texas on or around December 1, 2016.  It is slated to last 3 years.

The Texas Association for Home Health and Hospice has called for its members (and anyone else who will) to call your congress person and insist that he/she stop the pre-claim review process because it will slow or cease home health patient access to care.

For those of you who have been subject to the recent ADR project, this is the ADR project on a long term extended release steroid.

CMS cites the increase in home health billing errors from the 17% percent in 2014 go over 51% in 2015.  Pre-Claim Review is not prior authorization, nor is it ADR or prepayment review.  The review of the paperwork comes before the HHA can submit the final claim and receive payment, and the review can come anytime after the client has been placed on service, even after the end of the episode.  Therefore, like an ADR for a final claim, you will have provided the services prior to getting approval for the submission of the final claim.  It is more a prior authorization for billing.  The permission given by CMS is to allow the HHA to submit its final claim.  Therefore it is not a pre-payment review, but a pre-submission review for permission to submit the final claim.  The claims will be paid as usual, but you can’t submit the final claim without the approval.

While the documentation requirements are not being changed for home health, you should be aware from your experience with the ADR project that claims are being denied for not having the appropriate paperwork anyway.  Home Health has always been highly regulated, and will now  be highly technical regarding the paperwork you must present.

If your agency submits paperwork that is not approved, your agency will have a couple of options, either correct and resubmit the paperwork (up to an unlimited number of times), or appeal the denial and go through the administrative process of Medicare.  Those of you who have been through the Medicare appeals process know how very long that can take.

CMS maintains that the no beneficiary will have his or her access to home health restricted in any way.  I expect that is correct at first.  If CMS and its contractors stall out of the gates as sometimes occurs when demonstration projects are kicked off, if provider’s submission permission for final claims are delayed very long (remember, this is not a delay in payment, but a permission vehicle for the HHA to submit its final claim) beneficiaries may have to change providers often, even though their access to care is not restricted.

There is still time for getting your agency shaped up prior to the beginning of the demonstration.

Face-to-Face documentation from the Physician is a good idea to have in Home Health Charts

When CMS requests an ADR from your home health agency, the contractor may deny the documentation supports the services due to its failing to contain the proper Face-to-Face documentation. 

We have seen the contractor deny claims based on a failure to locate the F2F documentation.  However, the contractor is probably able to find your physician’s attestation, which is a typical part of your home health chart notes.  More likely is that the denial is based on the lack of the physician’s own notes from the Face-to-Face encounter made by the physician within the time frame set forth by CMS, whether for certification or recertification.

CMS contractors make it the Home Health Agency’s responsibility to offer proof that the certifying physician’s medical record for the patient contains the actual clinical note for the Face-to-Face encounter visit.  This doctor’s office note will be the only proof that the encounter occurred in the required time frame, and was related to the primary reason the patient requires home health service.  And the information in the doctor’s clinical note is the basis for the certification for the home health services.   Therefore, without the notes, the services are not properly certified.

While 42 C.F.R. §424.22(c) requires the certifying physicians to provide, upon request, the medical records documentation that supports the certification of patient eligibility for home health, the contractor is not requesting the documentation from the physician.  Because that documentation is the only documentation that will show the encounter was made in the required time frame and was related to the primary reason the patient requires home health services, it is a good idea for the Home Health Agency to make those records available in their own charts when that chart is reviewed in an ADR or prepayment review situation.

CMS issued a hint that the documentation is essential in MLN Matters number 1436 Special Edition.  After going over home bound status and general home health requirements, the Supporting Documentation on page 5 includes the information that must be contained in the physician’s records.  However, the ADR process seems to hold the liability for the physician’s records on the home health agency submitting additional documentation.

Therefore, to prove the beneficiary is eligible, the physician’s notes must meet the requirements of the regulation.  But if the contractor isn’t going to request the notes of the physicians, payment won’t be made without them it seems. 

Sending your Home Health notes to the physician’s office is not enough either.  The physician must review and sign the note in order for it to bolster the certification made by the physician.   See MLN Matters 1436 Special Edition.  CMS includes examples at the end of the article that will give you a template for your documentation.

Record Retention

Often, we receive a call from a provider who asks, “how long do I need to keep my records?”

As you can guess, it would be a management nightmare to keep only the Medicare claims for one period of time and Medicaid records for another, commercial insurance for another length of time, HMO and MCO for other lengths of time, and then private pay records for yet a different length of time.

Therefore, to avoid errors, you keep your records and patient charts for the longest period required of your payer mix, right?

Right.
 
And that time period gets longer and longer.  Our firm recently reviewed a contract for a Home Health and DME provider that required records to be kept 10 years. Therefore, make certain you check all your payer sources for the time period records must be kept.  This was a Medicare MCO plan, but the plan administrator wrote into the contract a time period much longer than Medicare records are typically kept by providers. If record destruction is part of your regular business process, do not push the “shred” button too soon.

You are shredding them, aren’t you?  The PHI (protected health information) contained in those records is HIPAA protected and the destruction process must ensure that information is not disclosed.  There are many shredding companies that will shred on site rather than taking the documents back to their warehouse for storage and shredding. 

Limitation on Physician Signatures who have a financial relationship with the HHA

If a physician has a financial relationship with a HHA, that physician is limited , and may not sign plans of care, certifications, or recertifications unless the financial relationship meets certain exceptions.

The exceptions are found in 42 C.F.R. §411.355-§411.357.  These exceptions are very similar to the Anti-kickback exceptions and will allow a medical director to furnish medical director (personal services) services to the HHA.  However, the exception has several prongs, and if you fail to meet them all, any signature your medical director puts on a plan of care, certification, or recertification, may be void, and ultimately, the payment for the home health services provided under that void certification or void plan of care will also be void, and CMS will request the repayment of it.
Before you accept your medical director’s signature on a Plan of Care, a certification or recertification, make certain your medical director’s signature will not be void due to the financial relationship he/she has with your agency. 

In MLN Matters 1436 Special Edition, CMS plainly states that the face-to-face encounter cannot be performed by any physician or allowed Nurse practitioner who has a financial relationship with the HHA.  CMS mentions no caveats or exceptions in this part (page 4), and references section 424.22(d)(2) which is the regulation prohibiting a nurse practitioner from completing any form a physician would not be allowed to complete.  While it might be a stretch to go from disallowing a nurse practitioner’s signature to disallowing the physician for the same (d)(2) section, CMS does not equivocate when prohibiting the physician’s signature on the face-to-face form if the physician has a financial relationship with the HHA.

This MLN Matters 1436 does not except when the physician with the financial relationship is performing the F2F for his/her own patients. This prohibition would curtail any physician, PA, or NPP from performing the F2F if the physician has a financial relationship with the HHA.

Understanding Litigation

LITIGATION INVOLVES A SERIES OF STEPS THAT MAY LEAD TO TRIAL

LITIGATION: An action brought in court to enforce a particular right.  The act or process of bringing a lawsuit in and of itself; a judicial contest.

THE PROCESS
A lawsuit, whether filed in civil court or criminal court, is ultimately a process.  Typically, the process is called litigation, and it allows those involved to establish facts and determine whether certain claims can be supported or not before moving to a settlement, or if no agreement can be had between the parties to the lawsuit, taking the case to trial.

BEGINNING THE PROCESS:
In both criminal and civil litigation, the process begins by one side (there can be several “sides” to a lawsuit, and each is called a “party” to the suit, but it will usually be the Plaintiff in civil lawsuits and typically the State in criminal lawsuits) filing paper complaining of the actions or inactions of the Defendant (or Defendants, those defending against the claims).  Once the filing is made, and the filing fee paid (or fees waived due to the indigence of the Plaintiff) the Plaintiff or the State must deliver to each Defendant a copy of the complaint documentation, and the Defendant must answer to the Court.  In the criminal context, a Defendant is typically served the complaint paperwork by local law enforcement agents, who bring the Defendant (often under arrest) to the court to answer to the Court.  In civil litigation, the Defendant merely files paperwork with the court to answer the lawsuit.

DISCOVERY 
Surprise is frowned upon in litigation, so there is a process that allows the parties to “discover” things about each other’s assertions.  This Discovery process, as it is known, allows each side to discover, and consider the strength of their evidence, and of the other side’s evidence, determine whether there is enough evidence to support the claims that have been made, and whether either side should continue with the lawsuit to the presentment of the case to a Judge or Jury at trial. 
Discovery encompasses the taking of statements of certain individuals, the exchange of documentary evidence, and the presentment of questions in writing to be answered by the other side.  Anything any party wants to use before in Court must be exchanged with the other parties ahead of time, or it may be barred.  

EXPERT WITNESSES
If additional support is needed by either side to explain a highly technical or unusual process, event or result, litigation allows for an expert witness to explain to the judge or jury something that might be well outside the knowledge base for the person (judge) or persons (jury) deciding the case.  It is unlikely that a veterinarian would be needed as an expert witness to explain how we get eggs, but a physics expert may be required to explain how the force exerted by a certain piece of equipment caused the property damage complained of when that equipment failed. 

MOTIONS
Motions are written or oral requests made to ask the judge make a ruling.  Some motions request the judge make a ruling that ends the lawsuit.  These are known as Motions to Dismiss, or Motions for Summary Judgment.  If the judge grants the Motion to Dismiss, or the Motion for Summary Judgment, the case is completed for that issue.  Other motions deal with only a narrow issue, such as the production of certain documentation requested in Discovery.  The judge’s decision doesn’t necessary alter the course of the lawsuit, however such a ruling may very well cause one side or the other to pause and reconsider the position taken. 
 
ALTERNATIVE DISPUTE RESOLUTION
Alternative Dispute Resolution (often referred to as ADR) is an out of Court option for parties to a dispute.  ADR can occur before a lawsuit is filed, while a lawsuit is in process, or after a judgment is rendered.  There are two common types of ADR.

ARBITRATION:  In many instances, especially when relationships are made through contract, the contract will require that the parties to the contract waive the right to a trial in Court, and disputes related to the contract can only be heard in Arbitration.  The Arbitration process differs from Litigation because Arbitration is not generally a public forum.  What goes on in the Arbitration is not available to the public without further agreements between the parties.  Arbitration is favored by companies, often, for that reason.  The Arbitration process is similar to that of Litigation, and the processes can be foreshortened or altered by agreement of the parties.  Ultimately, the Arbitrator, who holds the position of judge in arbitration, makes the ultimate decision about the dispute.  Sometimes there is a single Arbitrator, and sometimes a panel of three that decide the issues in dispute. 

MEDIATION:  Mediation or Settlement Conferences allow the parties to meet with a neutral “mediator” and work out the disputed issues with solutions agreed upon by the parties, and not imposed by a “trier of fact” like in Court (judge or jury) or in Arbitration (single or panel of arbitrators).   Often the parties to a dispute meet together and explain the case from their perspective.  Sometimes the parties remain together to try to reach a settlement.  Other times, the parties separate at some point and the mediator will visit with each to see whether creative solutions might be reached.  The mediator can attempt to persuade, but has no authority to impose any solution that might be available.  Often, each sides gives up something to achieve settlement.  Yet, in settling, the parties choose to give that up, rather than have the judge or jury decide that for them.  

TRIAL
Each party has the opportunity to question potential jurors, if a jury trial is held, and after the jury is selected, may put on evidence, examine witnesses, cross examine witnesses of the other parties, use demonstrative devices to help explain the issues, and make argument to the judge and/or jury.  The Plaintiff or State goes first, and once they have rested, or finished with their case, the Defendant or Defendants get to put on their case.  Once all parties have finished presenting their cases, the jury begins deliberations.  The jury and judge are given a series of questions to answer (the charge) in order to formulate the end result (verdict).  The verdict becomes the judgment once the judge approves it, and this begins the “post trial” activities.

POST TRIAL
After trial, the parties have rights to file certain requests of the trial court, to reconsider the verdict, point out errors that would negate the verdict, and the like.  The Trial Court has a certain amount of time to receive such requests or motions.   Once the request or motions are ruled on by the Trial Judge, the parties must act accordingly.  If errors are pointed out that reverse the verdict, the judge may grant the loser a new trial.  If so, another trial will be held.  If the judge does not grant any motion that results in a new trial, the matter may be Appealed to the appellate court in that jurisdiction.  The appellate court process is primarily a motion process where the parties draft written briefs to explain the errors, or correctness, of the decision from the court below.  Sometimes the appellate court will order the parties to argue their briefs if the appellate court requires more information or needs to ask questions of the parties to clarify positions taken.  There is second level of appellate court in some jurisdictions, but review may be discretionary, or limited for certain parties.     

U.S. Supreme Court Declines Review: Minimum Wage & Overtime Rule Upheld

The Department of Labor’s (DOL) final rule on the Home Health Aide/Companionship Services minimum wage and overtime exemption became effective January 1, 2015.   The final rule revised 1975 Fair Labor Standards Act (FLSA) regulations in response to changes to the home care industry and workforce.  The major effect of the final rule was to include domestic service workers under the FLSA’s minimum wage, overtime, and record-keeping provisions.  No longer would third-party employers of home health workers, such as home healthcare agencies, be able to claim the exemption. 

The rule was challenged in federal court by associations of home care companies, and orders were issued to vacate the rule’s third-party provisions and revised definition of companionship services.  The DOL then appealed the orders to the D.C. Circuit, and it prevailed.  On June 27, 2016, the U.S. Supreme Court denied the associations of home care companies’ request for certiorari.  As things currently stand, the DOL is now poised to enforce compliance of the final rule which is affirmed based on the D.C. Court’s decision.

Regardless of the FLSA’s final rule, LVNs and most other hourly employees must get time-and-a-half pay for work over 40 hours over seven consecutive days.  A “per visit” home health rate must translate into hourly pay and comply with the overtime law; time for notating medical records and driving to patient's homes must also be compensated.