DME Suppliers Must Adopt Procedures to Ensure Compliance with the ACA’s Face-to-Face Requirement

January 31, 2014

On July 1, 2013, certain durable medical equipment (DME) suppliers became subject to CMS regulations implementing the face-to-face examination requirement for Medicare Part B reimbursement that was established by the Patient Protection and Affordable Care Act of 2010 (ACA). The ACA created a new Medicare Part B condition for payment for certain items of DME, which requires a physician to document that the physician, a physician assistant, a nurse practitioner, or a clinical nurse specialist (i.e., a practitioner) had a face-to-face encounter with the beneficiary within six (6) months prior to issuance of the written order for the DME. During the required face-to-face encounter, the practitioner must conduct an assessment of the medical need for the DME or evaluate or treat the patient for the condition that warrants the DME. The practitioner must then provide the DME supplier with the written order and supporting documentation that substantiates the occurrence of the encounter, as CMS requires DME suppliers to retain the order and such documentation for seven (7) years from the date of service.

Orders for the following types of DME must satisfy the face-to-face requirement in order for the DME to be eligible for reimbursement under Medicare Part B:

  1. Power mobility devices (which are subject to additional face-to-face requirements);
  2. Specified Covered Items listed in the Federal Register, which is updated on an annual basis by CMS, including transcutaneous electrical nerve stimulation units, rollabout chairs, oxygen and respiratory equipment, hospital beds and accessories, and traction-cervicals;
  3. Any item of DME that appears on the Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Fee Schedule and that has a price ceiling at or greater than $1,000; and
  4. Any other item of DME that CMS adds to the list of Specified Covered Items through the administrative rulemaking process.

Although CMS has adopted the face-to-face examination requirement as a condition of payment under Medicare Part B for certain items of DME and as a condition of payment for certain home health services under Medicare Parts A and B, CMS has not yet promulgated a final rule that renders the face-to-face requirement fully applicable to home health services and medical equipment reimbursable under Medicaid. However, a number of states have already promulgated their own Medicaid regulations or policies applicable to the coverage of medical equipment, some of which are more stringent than the Medicare face-to-face requirement. For example, Kentucky and Nevada require that a face-to-face visit occur within 60 and 30 days, respectively, prior to the issuance of the written order. Varying state regulations and/or policies of this nature have created claims denial problems for DME suppliers.

When CMS promulgated the final regulation implementing the Medicare Part B face-to-face requirement in November 2012, CMS delayed the effective date until July 1, 2013 due to concerns that DME suppliers would need additional time to establish operational protocols necessary to comply with this condition of payment. Subsequently, on September 9, 2013, CMS announced that it was delaying enforcement of the face-to-face requirement until a date that CMS would announce in calendar year 2014. On December 3, 2013, CMS clarified that the delay in enforcement would pertain only to the face-to-face requirement. Thus, DME suppliers must currently satisfy all of the other conditions for payment, including the written order prior to delivery requirements, but should also be making operational changes in anticipation of CMS’ full implementation of the face-to-face requirement.

If you have any questions about the implementation of the face-to-face requirement under Medicare Part B or various state Medicaid programs, please contact one of the authors.