Face-to-face requirements in several care settings have been
established through the Affordable Care Act (ACA).
The face-to-face requirement is designed to reduce fraud, waste, and
abuse by assuring that physicians and other healthcare providers
have actually met with potential beneficiaries to ascertain their
specific healthcare needs. Providers are concerned that the rules
may in fact delay care, given already over-tasked medical practices
and other concerns that impact when, and under what circumstances,
patients are seen in advance of services. For advocates, the key is
to assure timely access to necessary services.
The Centers for Medicare & Medicaid Services (CMS) has decided to
delay implementation of the face-to-face requirement in the home
health and hospice settings until the second quarter of Calendar
Year (CY) 2011.
Home Health Care
specifics of the face-to-face requirement for home health care, and
certification after the face-to-face encounter, are included in CMS
regulations that were issued on November 17, 2010.
The regulations establish that a face-to-face encounter must have
"occurred no more than 90 days prior to the home health start of
care date or within 30 days of the start of the home health care by
including the date of the encounter."
The certification of the need for home health care must include an
explanation as to why the physician's clinical findings support the
need for home health care, including that the patient is homebound
and the need for either intermittent skilled nursing services or
therapy services as defined in 42 C.F.R. §409.42(a) and (c).
The regulations provide that a face-to-face encounter can be by tele-health
as provided in §1834(m) of the Social Security Act.
regulations require that the face-to-face encounter be performed by
the certifying physician or by a nurse practitioner, a clinical
nurse specialist who is working in collaboration with the physician
or a physician assistant under the supervision of the physician.
The documentation of the face-to face patient encounter must be a
separate and distinct section of, or an addendum to, the
certification, and must be clearly titled, dated and signed by the
When the face-to-face encounter is performed by a non-physician, he
or she must document the clinical findings of the face-to-face
encounter and communicate those findings to the certifying
the face-to-face encounter occurred within 90 days of the start of
care, but was not related to the primary reason that the patient
requires home health services, or if the patient has not seen the
certifying practitioner within 90 days of the start of the episode
of home health care, the practitioner must have a face-to-face
encounter with the patient within 30 days of the start of the home
Recertification of the need for home health care must be provided at
least every 60 days, with a preference for the recertification to
occur at the time that the plan of care is revised. The
recertification must be signed and dated by the physician who
reviewed the plan of care.
According to CMS, recertification does not require face-to-face.
When the hospice
face-to-face requirements become effective, a hospice physician or
hospice nurse practitioner must:
have a face-to-face
encounter with each hospice patient, whose total stay across all
hospices is anticipated to reach the 3rd benefit period, no more
than 30 calendar days prior to the 3rd benefit period
recertification, and must have a face-to-face encounter with that
patient no more than 30 calendar days prior to every recertification
thereafter, to gather clinical findings to determine continued
eligibility for hospice care.
The required narrative of
certification must include a statement, written directly above the
physician's signature, attesting that the physician confirms that
the narrative is based on his or her examination of the patient.
In addition, the narrative for the 3rd benefit period and each
subsequent benefit period must explain why the clinical findings of
the face-to-face encounter support a life expectancy of 6 months or
The certification of the
physician or nurse practitioner who performs the face-to-face
encounter must contain a written attestation that he or she had the
face-to-face encounter with the patient.
The certification must be in writing; and must be a separate and
distinct section or an addendum to the recertification form; and
must be clearly titled. If done by a nurse practitioner, the nurse
practitioner must state that his or her clinical findings from the
face-to-face encounter were provided to the certifying physician.
 Moreover, all certifications and recertifications must be
signed and dated by the physician(s), including the benefit periods
to which the certification or recertification applies.
Because of fraud and billing irregularities, the requirement that a
beneficiary must have a face-to-face encounter with a physician for
the receipt of certain specified durable medical equipment (DME) is
long standing – specifically for a power mobility device (PMD) used
Implementation of the DME face-to-face encounter requirement,
including amendments to it made by the Affordable Care Act, is
ongoing and has not been paused or delayed like the home health and
Medicare law requires that a prescription for the PMD must be in the
form of a written order completed by the physician or treating
practitioner who performed the face-to-face examination and received
by the PMD suppler within 45 days of the face-to-face encounter.
In addition, the law provides that the word "physician" has the same
meaning as in section 1861(r)(1) of the Medicare Act.
Note, however, for beneficiaries discharged from a hospital, a
separate face-to-face encounter is not required as long as the
physician or treating practitioner who performed the face-to-face
examination of the beneficiary in the hospital issues a PMD
prescription, with supporting documentation, within 45 days after
the date of discharge.
Affordable Care Act (ACA) amends the Medicare statute to provide
that the Secretary shall require that an order for specified DME
must be written by a physician, a physician assistant, a nurse
practitioner, or a clinical nurse specialist who has had a
face-to-face encounter with the patient (including tele-health)
during the 6 month period preceding the written order or other
reasonable time frame as determined by the Secretary.
Advocates should continue to monitor developments. The regulations
discussed above provide a useful framework for advocates in their
efforts to establish necessary services, particularly when disputes
arise about the needs of specific beneficiaries. The ability to
show that a face-to-face encounter with a physician or other
qualified healthcare provider has occurred, including all necessary
assessments and certifications, will be key to success.
 The Affordable
Care Act of 2010 (ACA), Pub. L. 111-148, enacted March 23,
 75 Fed. Reg.
70372- 70486, November 17, 2010.
 42 C.F.R. §
 Ibid C.F.R.
 Ibid. §
 75 Fed. Reg.
70428, November 17, 2010
 See 42 C.F.R.
§410.38(c) (Aug. 2005). The Secretary’s authority to specify
items of DME to be subject to the face-to-face requirement
is found in §1834(a)(11)(B) of the Social Security Act, 42
U.S.C. §1395m(a)(11)(B). Further, the Secretary of Health
and Human Services, (the Secretary), has been given the
authority to apply the face-to-face requirement to other
areas of Medicare to reduce waste, fraud, and abuse as she
deems appropriate. ACA §6407(c). The Secretary has also
been given the authority to apply the face-to-face
requirement to Medicaid services if she deems it would
reduce waste, fraud, and abuse. Id. §6407(d).
 42 C.F.R.
§1861(r)(1) of the Social Security Act, defining a physician
as "a doctor of medicine or osteopathy legally authorized to
practice medicine and surgery by the State in which he
performs such function or action."