New Hospice Face-to-Face Requirement: Help or Hindrance?

Eligibility for Medicare coverage of hospice care is contingent in part upon a hospice physician certifying that the beneficiary has a life expectancy of six months or less if the terminal illness runs its normal course.   In an effort to promote physician engagement in the process of certifying patients as eligible for the Medicare hospice benefit, Congress amended § 1814(a)(7) of the Social Security Act, by § 3132 of the Affordable Care Act, to require a face-to-face encounter by a hospice physician or nurse practitioner with every hospice patient to determine the continued eligibility of that patient prior to the 180-day recertification, and prior to any subsequent recertification. Furthermore, the law requires that the hospice physician or nurse practitioner attest that such a visit took place.

To implement the new statutory requirement, the Centers for Medicare & Medicaid Services (CMS) made changes to 42 C.F.R. § 418.22(a)(3), (a)(4), (b)(3), (b)(4), and (b)(5). The new rules were scheduled to become effective on January 1, 2011. However, to allow providers the opportunity to establish operational protocols necessary to comply with the face-to-face encounter requirements, full implementation was delayed. In the mean time, CMS published policy further illuminating how the law has been interpreted and how it will be implemented.  This new policy can be found in Chapter 9 of the Medicare Benefit Policy Manual.[1] As of April 1, 2011, Medicare-certified hospices must fully comply with the face-to-face encounter requirements. 

Access to Reliable Information on Benefit Periods

The required face-to-face encounter must occur prior to the start of the beneficiary's third hospice benefit period and again prior to all subsequent benefit periods. As Medicare beneficiaries have an unlimited number of benefit periods available to them, hospice providers must, prior to admitting hospice beneficiaries, first determine whether each beneficiary requires a face-to-face encounter. To accomplish this, CMS directed hospice providers to use the Common Working File. The Common Working File keeps track of hospice certification periods, through the filing of hospice election statements by providers with their Medicare contractors. This system, however, has a serious flaw. There is currently no mandate requiring that providers immediately file election statements. At this time, providers must file the election statements with their Medicare contractors prior to the time they bill, but they have one year to bill for rendered care. This flaw creates significant lag time in the system's accuracy and if not remedied, could create future financial liability for both Medicare hospice providers and beneficiaries. 

Exceptional Circumstances

Because exceptional circumstances will sometimes make it impossible for providers to have face-to-face encounters prior to admissions, CMS has appropriately created the following policy:

In cases where a hospice newly admits a patient who is in the third or later benefit period, exceptional circumstances may prevent a face-to-face encounter prior to the start of the benefit period. For example, if the patient is an emergency weekend admission, it may be impossible for a hospice physician or [nurse practitioner] to see the patient until the following Monday. Or, if CMS data systems are unavailable, the hospice may be unaware that the patient is in the third benefit period. In such documented cases, a face-to-face encounter which occurs within 2 days after admission will be considered to be timely. Additionally, for such documented exceptional cases, if the patient dies within 2 days of admission without a [face-to-face] encounter, a [face-to-face] encounter can be deemed as complete.[2]

The Issue of Liability

For recertifications on or after January 1, 2011, a hospice physician or hospice nurse practitioner must have a face-to-face encounter with each hospice patient prior to the beginning of the patient's third benefit period, and prior to each subsequent benefit period. Failure to meet the face-to-face encounter requirements…results in a failure by the hospice to meet the patient's recertification of terminal illness eligibility requirement. The patient would cease to be eligible for the benefit.[3]

This statement should be expanded in order to more clearly address the issue of liability. That is, in the event that a certification is not obtained, who – the provider or the Medicare beneficiary – will be financially responsible for the rendered hospice care? The answer to this question is found in the regulations. They state that if a beneficiary "would be entitled to have payment made if the provider [had] in its files the required certification and recertification by a physician relating to the services furnished to the beneficiary," the provider "agrees not to charge [the] beneficiary."[4]  In other words, if the provider fails to meet the "face-to-face" encounter requirement prior to the third benefit period, and prior to each subsequent benefit period, the provider should be financially responsible for rendered care. To avoid future confusion, the Medicare policy manual should be amended to address this issue.

Hopefully the "face-to-face" encounter will have the desired effect of encouraging increased physician involvement not only with the certification process, but with overall care of hospice patients. However, this new requirement still creates the unresolved concern that it makes caring for hospice patients in their third and subsequent certification periods more difficult and potentially more expensive for providers than caring for patients in their first and second certification periods. This could create a significant barrier to care for dying Medicare beneficiaries and is therefore an issue that must be closely watched.

For more information, contact attorney Terry Berthelot (tberthel@medicareadvocacy.org) in the Center for Medicare Advocacy's Connecticut office at (860) 456-7790.