Regarding Requirement for Physician Certification
2. Physician
Documentation of Face-to-Face Meeting Prior to DME Order - Does it Apply to
Midwives?
1.
ACNM and Other Nursing Groups Send Letter to CMS Regarding Requirement for
Physician Certification
Earlier today, ACNM,
in cooperation with the American Association of Nurse Practitioners, the
American Nurses Association, the National Association of Pediatric Nurse
Practitioners, and the Nurse Practitioners in Women's Health sent a letter
to CMS urging the agency to revise its guidance related to physician
certification of the medical necessity of inpatient admissions.
In late 2013, CMS revised its regulations regarding documentation of inpatient
admission orders and subsequent, separate certifications of the necessity of
such an admission. The regulation clearly allows CNMs and other
professionals to sign an inpatient admission order when permitted to do so
under state law and applicable hospital bylaws. However, the regulation
is less than clear regarding whether they can sign the additionally required
certification of the medical necessity of such an admission. It appears
that they may be able to if they are members of the medical staff.
However, guidance
issued September 5, 2013 indicated that only physicians could sign a
certification.
Although this is a policy that applies only to Medicare patients, many
hospitals have applied it across the board and a significant number of ACNM
members have been required to begin collecting physician certifications for the
admissions they order.
The letter to CMS requests clarity on the ability of CNMs and other
professionals who are on medical staff to sign certifications. It also
notes that CMS has the statutory authority to modify its regulation to allow
health professionals who are not physicians to sign certifications, even if
they are not on the medical staff. Such a regulatory change would clearly
take some time to accomplish, but it is possible without having to seek a
statutory change from the Congress.
Those organizations who signed the letter request a meeting with CMS to discuss
the issue and we will report on the outcome of that meeting when and if it
occurs. If you would like to see a more ample discussion of this issue,
ACNM has posted an Issue
Brief on the topic on its website.
2.
Physician Documentation of Face-to-Face Meeting Prior to DME Order - Does it
Apply to Midwives?
Within the last week, two ACNM members have written to me asking about the
application to midwives of a CMS requirement that items of DME not be covered
unless a physician documents that a face-to-face encounter between the patient
and the physician or another practitioner has taken place.
The bottom line is that this has very little application to midwives, so if
you're hearing concerns about it, you can probably rest easy. Here's why.
First, if you don't treat Medicare patients, then it doesn't apply.
Second, it only applies when you are ordering the items listed in Table 89
(link below) for the personal use of a specific Medicare beneficiary. If
you're buying those things for your own use (a TENS unit for example, that you
might use with many patients), you'd be paying out of your own pocket and it of
course would not be affected by this policy. Since CNMs don't treat many
Medicare patients and since the list of affected DME items doesn't include the
kinds of things they would typically order for patients - personal use, this
policy is not likely to affect ACNMs membership.
Background
Fraud with regard to DME has been a long running and nasty thorn in
Medicare's side. (See this
GAO Report, for an example of the level of fraud in DME). In response
to this problem, Congress modified the Social Security Act allowing CMS to
require that for "specified covered items" payment may only be made if a
physician or other provider (including, among others, a CNM) has given a
written order for the item to the DME supplier before delivery of the
item. This provision was further strengthened by the Affordable Care Act,
which required that for certain items of DME, prior to the order being written,
a physician must document that a face-to-face encounter occurred between the
Medicare beneficiary and a physician, physician assistant, nurse practitioner,
or clinical nurse specialist. Notably, CNMs are not included in this list
of providers that can conduct the face-to-face encounter even though they can
write the order for the item after the encounter and documentation thereof has
occurred. Note that ONLY a physician can document the face-to-face
encounter, even though other types of practitioners may perform it.
Title 42 of the Code of Federal Regulations, Part
410.38(g) provides a list of general categories of "specified covered
items" affected by this policy. In the 2012
final Medicare Physician Fee Schedule, CMS published Table 89, which lists
each specific item of DME within those general categories. Notably, it
includes TENS units and various pieces of oxygen and resuscitation equipment .
This provision does not prohibit a CNM from purchasing an item of DME on the
"specified covered items" list for her own use with patients. It simply
mandates that the specified encounter, documentation and order all take place
for the item to be paid for when used by an individual Medicare
beneficiary. Neither the law nor regulation requires application of this
policy beyond Medicare.
Current Events
The PAs, NPs and CNS have pointed out that the requirement for physician
documentation of the encounters they conduct prior to the DME order is a
barrier to care. Frankly, this is not the first time that fraud has
resulted in highly complex rules that are difficult to implement in
practice. In early January of 2014, Rep. Jim McDermott (D-WA) introduced
H.R. 3833 to address the situation. This legislation would modify the
Social Security Act so that PAs, NPs and CNS could document their own
face-to-face encounters. It would not, however, allow CNMs to either
conduct, or document, a face-to-face encounter should they ever find the need
to order on of the "specified covered items" for a Medicare beneficiary.
