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ACNM Policy Update - 1/30/2014

1.  ACNM and Other Nursing Groups Send Letter to CMS 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.

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.



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