New Medicare Home Health Certification/Recertificaton Rules

Many physicians have patients who receive home health services under Medicare Parts A and B. In such cases physicians must certify that the patient is “confined to [their] home,” otherwise known as being “homebound.” It used to be that a patient needn’t be bedridden, but only have “a normal inability to leave home.”

In 2017, CMS tightened up the definition of homebound. Now, a patient must either need the aid of supportive devices in order to leave their residence OR have a condition that makes leaving the medically contraindicated. Once this is established, then the patient must also have both “a normal inability to leave home” AND it must be the case that leaving home requires a “considerable and taxing effort.” Examples given by CMS of “homebound” include:

• A patient paralyzed by a stroke who is confined to a wheelchair or requires crutches to  walk;
• A patient just returned from a hospital stay involving surgery, suffering from weakness and pain due to the surgery, and whose activities are restricted by a physician for a specific time; and
• A patient with a psychiatric illness who refuses to leave home.

To be a covered service, a home health agency must have a written Plan of Care. The patient’s physician must review and sign the Plan of Care “at least every 60 days.” Each review must show the physician’s signature and date of review.1

Previously the attending physician signed a Home Health Certification and Plan of Care form in which he stated:

I certify that this patient is confined to his/her home and needs intermittent skilled nursing care, physical therapy, and/or speech therapy or continues to need occupational therapy. This patient is under my care, and I have authorized the services on this plan of care and will periodically review the plan.

But the contents of this changed in 2017 when CMS added this sentence:

The patient had a face-to-face encounter with an allowed provider type on [date] and the encounter was related to the primary reason for home health care. 2

Despite the explicit requirement for a “face-to-face” encounter, there is no requirement for a “face-face form,” nor a requirement that the certifying physician to write a narrative about the face-to-face encounter. Still, it is important that it be documented.

The 2017 change is important for several reasons. Because patientsreceivingMedicare covered home health services are, by definition “homebound,”getting to their doctor’s office every so often may be difficult. Home health agencies know this all too well, and some make a practice of preparing the Home Health Certification and Plan of Care forms en masse, then delivering them to the physician for signature. Under the old policy, that practice was questionable at best, but under the new policy is clearly fraud if no face-to-face encounter has occurred. 3

Physicians may bill for certification and recertification of plans of care. However, one cannot just bill for signing the form, there must be documentation in the record that supports contact with the home health agency and review of reports of patient status. And in no circumstances may physicians receive payment from the home health agency for certification and recertification of plans of care - that would clearly be an illegal kickback.4

Further, physicians must have some degree of awareness of what he home health agency is actually doing. As long as 23 years ago, the HHS OIG warned that, when a physician orders unnecessary home health care services, they may be liable for causing false claims to be submitted by the home health agency, even though the physician does not submit the claim.5

This is not just a Medicare issue. When the Texas Medical Board receives a complaint that a physician has certified a patient for Medicare home health care they did not examine, or otherwise did not qualify for home health care, they will usually open a formal investigation. Although these cases are rare, TMB will usually allege several violations of Texas (not Federal) law, including (1) Making a Writing in Support of a False Insurance Claim, 6 (2) Practice Inconsistent with Public Health and Welfare, and (3) Unprofessional Conduct. If, upon investigation, the physician’s medical records do not support that the patient is homebound, then additional charges - such as failure to maintain adequate medical records - may be added. 

Conclusion: Why These Rules Are Critically Important Now. Home health agencies, and physicians who refer to them, are squarely in the sights of the Medicare Fraud Strike Force. Nearly all recent cases involve payments to physicians in return for referring patients who don’t need the services billed. Statistics are used to target these cases, such as agencies whose patients had no visit to their physicians within 180 days of starting home care 62.5% of the time (the national average is 22.6%). Agencies whose patients have diabetes or hypertension as the primary diagnosis 45.1% of the time (the national average is 10.1%) are also targeted. HHAs who meet these criteria are known as “outliers” and investigations aren’t very complicated. 

Physicians who refer to home health agencies and regularly sign the Medicare Home Health Certification and Plan of Care form have to be aware of (1) the new policies for eligibility, (2) the face-to-face encounter requirement, and (3) the supporting documentation requirements. These changes were made under the rubric of “clarification,” but given the number of recent investigations and prosecutions should be seen as a bulwark against fraud. And as always, the physician must be completely aware of the content of what he is signing, as the excuse of “it’s just government paperwork so my patient can get care” will not work.

Notes:

1. Medicare Benefit Policy Manual, Chapter 7 - Home Health Services, Section 30
2. See CMS “Pre-claim Review Demonstration for Home Health Services Frequently Asked Questions,” 10/27/2016
3. 42 USC §1320a–7b(a)(Making or causing to be made false statements or representations)
4. 42 USC §1320a–7b(b)(Illegal remunerations). As an example, a physician in Lancaster, California was convicted of accepting illegal kickback payments to a Medicare patients to a home health agency on August 23, 2018. Kanagasabai Kanakeswaran, M.D. was only paid $13,100.00 for these referrals, but faces a long possible prison term
5. HHS OIG Special Fraud Alert: Home Health Fraud (June 1995)
6. Texas Occupations Code Section 105.002(a)(2). Enacted in 2001, this is a separate “Unprofessional Conduct” law applicable to all licensed Texas health care professionals
7. U.S. Department of Health and Human Services: Nationwide Analysis of Common Characteristics in OIG Home Health Fraud Cases, 2016