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CMS: When a Clarification‒Isn’t

CMS has just issued MedLearnMatters MLN MM12615 MLN 1135 related to Change Request (CR) Number 12615. Part of this was to address corrections and clarifications regarding who may sign the certification and recertification for home health patients with Medicare.

In response to the Public Health Emergency (PHE) issued related to the Covid-19 pandemic were a number of waivers 1135-Waivers that gave providers leeway with normal regulatory compliance.

One of these expanded the home health certification ability to “allowed practitioners”—these being nurse practitioners (NP), physician assistants (PA), and clinical nurse specialists (CNS).

Then, in the Final Rule Home Health 2022 Final Rule CMS made permanent the expanded ability for allowed practitioners to provide what was previously specifically physician (MD, DO, DPM) oversight of the plan of care and certifications.

This was reflected in the Medicare Benefit Policy Manual (MBPM), IOM Pub. 100-02, Chapter 7 MBPM Chapter 7. Specifically, Section 30.2.1 defined allowed practitioner:

30.2.1 – Definition of an Allowed Practitioner

(Rev. 10438, Issued: 11-06-20, Effective: 03-01-20, Implementation: 01-11-21)

Allowed practitioners in addition to physicians, can certify and recertify beneficiaries for eligibility, order home health services, and establish and review the care plan. Allowed practitioners are defined at § 484.2 as a physician assistant, nurse practitioner, or clinical nurse specialist as defined at this part. NPs, CNSs, and PAs are required to practice in accordance with state law in the state in which the individual performs such services. Individual states have varying requirements for conditions of practice, which determine whether a practitioner may work independently without a written collaborative agreement or supervision from a physician, or whether general or direct supervision and collaboration is required.

So, as of January 2021 it was up to the individual states to establish what relationship must exist, if any, between a non-physician allowed practitioner and a physician.

This was a great step forward for home health flexibility in relation to developing the plan of care, receiving orders, and meeting other CMS certification requirements.

NOW, CMS has issued the MedLearnMatters “clarification” effective January 1, 2022 and implemented on May 26, 2022.

Crucial language has now been added to include “who’s working in collaboration with the physician” for NPs and CNSs. A further describing paragraph identifies that “However, a CNS and NP must work in collaboration with a physician even if state laws governing collaboration don’t exist.”

This clarification does several things:

  • It puts an additional required collaboration requirement back on home health agencies’ needs.

  • It raises questions of what documentation of this collaboration is needed to be maintained by the agency.

  • It raises a question of what documents must be sent for medical record requests (ADRs) to validate this collaboration.

  • It raises a question why this only applies to NPs and CNSs but not NPs.

  • It raises a question just what “work in collaboration” means—or how it can be shown to be met.

  • It raises a risk of denials in case of medical review if the agency cannot adequately show that this collaboration exists.

What to do? Assess your agency’s use of allowed practitioners. You may wish to inquire and maintain at the time of service some form or statement identifying the collaboration. Keep up to date on your agency’s MAC website for further guidance. Ask your MAC for compliance guidance (via the Review Choice Demonstration or Ask the Contractor teleconferences).

And stay tuned to see if CMS will clarify its clarification.

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