Hospice Face 2 Face Audit Update

Effective April 2011, CMS implemented the Affordable Care Act requirement that hospices conduct a face to face visit as part of any recertification of any beneficiary in the third or later benefit period. With the forthcoming hospice and home health RAC auditor, hospices will face increasing audits on face to face compliance. In this post, Sheppard Mullin examines some of the key requirements of the face to face requirement.

Palmetto reported recently that 49% of its ADR denials for hospice and home health stem from the face to face requirement. Although the statutory requirement is fairly straightforward, specific regulatory timing and compliance requirements create significant pitfalls for hospice providers and, in turn, opportunity for Medicare contractors to recover alleged overpayments.

MEDPac originated the requirement in an effort to constrain expense by requiring closer doctor scrutiny before recertification. But, Medicare contractors see the face to face requirement as an opportunity to make simple denials of claims.

While prior hospice auditing required complex review of the six month diagnosis (a subjective doctor's determination), the face to face requirements provide contractors with objective, verifiable means to attempt to deny or recoup reimbursement (even where services are medically necessary).

Outside the government context, medical providers and other contracting parties can assert substantial compliance as a defense to small, technical breaches that cause trifling harm. Wisconsin Dept. of Revenue v. Wrigley Co., 505 U.S. 214, 231 (1992) (noting general applicability of "venerable maxim de minimis non curat lex ("the law cares not for trifles")).

There are also principles in both Federal case law and Medicare policy manuals that suggest that technical violations should not lead to payment forfeitures. United States v. Bajakajian, 524 U.S. 321 (1998) (setting aside as constitutionally excessive full forfeiture of $230,000 in cash as a civil fine for failure to report cash in excess of $10,000 to customs officials); Medicare Program Integrity Manual, § 3.1 ("When an error has been validated through MR, the corrective action imposed by the MACs should match the severity of the error");Medicare Benefit Policy Manual, §20.1 (allowing face to face to occur up to 2 days late in cases of documented emergency admission; waiving face to face where patients dies within 2 days of admission).

But, Congress, following MEDPac's lead...