Warning: Proposed rule doesn’t give you the instructions you need for compliant skilled services billing.

In the HH PPS Update 2010 proposed rule published in the Aug. 13 Federal Register, CMS clarified coverage for evaluation and management services, something that agencies desperately need to determine whether Medicare will pay for skilled nursing and home health aide services as the primary payer, says Washington, D.C.-based attorney Elizabeth Hogue.

CMS’s clarifications don’t come out of the blue. MedPAC, the Office of Inspector General, and Medicaid state agencies have all suggested that CMS remove any doubt about how or when Medicare will cover skilled services. After working with agencies to identify what was causing the confusion, CMS proposed these changes:

• A new paragraph in Section 409.42(c)(1), which states that in the home health setting, management and evaluation of a patient care plan is considered a reasonable and necessary skilled service only when underlying conditions or complications are such that only a registered nurse can ensure that essential non-skilled care is achieving its purpose.

• A new paragraph in Section 409.42(c)(1),which states that patient education is considered a skilled service so long as the services are appropriate for patients’ illnesses, functional losses, or injuries — until it becomes apparent that the patient, family, or caregiver could not or would not be trained. After that point, patient education will no longer be considered a skilled service.

• Revisions to Sections 424.22(a)(1)(i) and 424.22(b)(2) to require that agencies receive a written narrative of clinical justification when physicians certify and recertify patients for conditions that support findings that recovery and safety can be ensured only if the care is planned, managed, and evaluated by a registered nurse.

Problem: The proposed revisions don’t actually clarify anything, Hogue says. “It appears that agencies will still have to exercise discretion and judgment with regard to whether services are covered by the Medicare program,” she points out.

The proposed rule’s clarifications are meant to clear up agencies’ confusions, but really the rule just “takes longstanding Medicare policy and puts it into formal regulation,” says guidance from the National Association for Home Care and Hospice. However, many agencies may see the clarifications as a “tightening of coverage standards,” turning something as simple as the wrong interpretation into a big bull’s-eye on agencies’ backs, NAHC notes.

And as with any other exercise of judgment, agencies’ decisions can be “second guessed by regulators and enforcers” — leaving agencies open to payment recoupment and fraud allegations, Hogue warns.

Better: CMS should offer extensive examples of each situation so that agencies know without any doubt how they should bill for their services, Hogue suggests. Hogue hopes CMS will add concrete examples to the final rule so that agencies won’t continue to be at risk, she says.

© Home Care Week.

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