Face-to-face rule: Clarifications provide 'breathing room'

WASHINGTON - Recent clarifications from CMS and its contractors have loosened the noose that is the face-to-face requirement, industry stakeholders say.

Stakeholders have learned that 1.) CMS and its contractors won't audit providers for compliance with the face-to-face requirement until they start enforcing it (the written order prior to delivery requirement, however, is fair game); and 2.) CMS won't require providers to obtain a new face-to-face evaluation when a state requires a new order on a periodic basis.

“They have been slow to come, but every clarification is a bit more breathing room,” said Andrea Stark, a reimbursement consultant with MiraVista.

CMS implemented both the face-to-face and written order prior to delivery (WOPD) requirements July 1, 2013. The agency started enforcing the WOPD requirement on Jan. 1; it planned to start enforcing the face-to-face requirement some time this year, but it has since pushed back its plans indefinitely.

There is a minor glitch in CMS's plan to prohibit the DME MACs, RACs, ZPICs and PSCs from auditing providers for compliance with the face-to-face requirement: It doesn't apply to the CERT. But stakeholders don't see that as a “giant risk.”

“The CERT audits a small number of claims on a post-payment basis,” Stark said. “I don't envision them doing a mass audit to catch providers.”

The clarification that CMS and its contractors will require providers to obtain new face-to-face evaluations only for orders for Medicare payment came from one of the four DME MACs, but stakeholders expect the others to follow suit.

“A lot of states have annual prescription requirements for oxygen,” said Kim Brummett, senior director of regulatory affairs for AAHomecare. “If you had to get a new face-to-face for every patient, every year, that would be crazy.”

Of course, there are still numerous gray areas that stakeholders would like to see CMS clarify. Among them: Do providers really need to obtain a new face-to-face evaluation when a beneficiary changes providers (due to personal preference, an acquisition, or competitive bidding), or when a beneficiary switches insurance plans?

“We're not trying to be unreasonable,” Brummett said. “We continue to try to work with CMS to find a solution. Every little thing counts.”