By Daniel A. Nicholas
On November 16, 2012, the Centers for Medicare & Medicaid Services (“CMS”) published its final rule that made several changes to the payment provisions under the Physician Fee Schedule that was part of the Medicare Modernization Act (the “MMA”). Under the final rule, there are now restrictions as to the ordering of various items of durable medical equipment (“DME”) pursuant to Part B of the MMA. Specifically, defined DME product can only be ordered after the physician, physician assistant, nurse practitioner, or clinical nurse specialist has had a face-to-face encounter with the patient. The encounter must asses, evaluate, and/or treat the patient for the medical condition that supports the need for the DME product. This requirement is extended to the following DME product:
• Transcutaneous electrical nerve stimulation units
• Rollabout chair
• Oxygen and respiratory equipment
• Hospital beds and accessories
• Any item of DME in the durable medical equipment, prosthetics, orthotics, and Supplies Fee Schedule with a price ceiling at or greater than $1,000
As a result of the final rule, the face-to-face encounter shall be documented in the patient’s medical record and occur on the date of the written order, or up to six months before the written order. If the face-to face-encounter is performed by a non-physician practitioner, then the DEM order must be signed or co-signed by the physician. In addition, the physician is required to provide records showing the face-to-face encounter to the DME provider, and in turn, the DME provider must maintain the records for seven years that is subject to CMS review upon request.
The new requirements will take effect July 1, 2013. As part thereof, we anticipate that CMS will be conducting audits to assure compliance with the final rule to discover potential fraud associated with provision of unneeded DME product.
*This Nicholas and Bell Practice Update is solely intended to inform the business community, the healthcare industry, and clients, both existing and potential, of legal developments, including recent decisions of various courts and administrative entities. . Nothing contained herein, shall ne deemed or construed as legal advice or a legal opinion, and readers should not act upon the information contained in this Practice Update without seeking the advice of legal counsel. Prior results do not guarantee a similar outcome.