Face-to-face requirements in several care settings have been established through the Affordable Care Act (ACA). The face-to-face requirement is designed to reduce fraud, waste, and abuse by assuring that physicians and other healthcare providers have actually met with potential beneficiaries to ascertain their specific healthcare needs. Providers are concerned that the rules may in fact delay care, given already over-tasked medical practices and other concerns that impact when, and under what circumstances, patients are seen in advance of services. For advocates, the key is to assure timely access to necessary services.
The Centers for Medicare & Medicaid Services (CMS) has decided to delay implementation of the face-to-face requirement in the home health and hospice settings until the second quarter of Calendar Year (CY) 2011. 
Home Health Care
The specifics of the face-to-face requirement for home health care, and certification after the face-to-face encounter, are included in CMS regulations that were issued on November 17, 2010. The regulations establish that a face-to-face encounter must have "occurred no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care by including the date of the encounter." The certification of the need for home health care must include an explanation as to why the physician's clinical findings support the need for home health care, including that the patient is homebound and the need for either intermittent skilled nursing services or therapy services as defined in 42 C.F.R. §409.42(a) and (c). The regulations provide that a face-to-face encounter can be by tele-health as provided in §1834(m) of the Social Security Act.
The regulations require that the face-to-face encounter be performed by the certifying physician or by a nurse practitioner, a clinical nurse specialist who is working in collaboration with the physician or a physician assistant under the supervision of the physician. The documentation of the face-to face patient encounter must be a separate and distinct section of, or an addendum to, the certification, and must be clearly titled, dated and signed by the certifying physician. When the face-to-face encounter is performed by a non-physician, he or she must document the clinical findings of the face-to-face encounter and communicate those findings to the certifying physician.
If the face-to-face encounter occurred within 90 days of the start of care, but was not related to the primary reason that the patient requires home health services, or if the patient has not seen the certifying practitioner within 90 days of the start of the episode of home health care, the practitioner must have a face-to-face encounter with the patient within 30 days of the start of the home health care.
Recertification of the need for home health care must be provided at least every 60 days, with a preference for the recertification to occur at the time that the plan of care is revised. The recertification must be signed and dated by the physician who reviewed the plan of care. According to CMS, recertification does not require face-to-face.
When the hospice face-to-face requirements become effective, a hospice physician or hospice nurse practitioner must:
have a face-to-face encounter with each hospice patient, whose total stay across all hospices is anticipated to reach the 3rd benefit period, no more than 30 calendar days prior to the 3rd benefit period recertification, and must have a face-to-face encounter with that patient no more than 30 calendar days prior to every recertification thereafter, to gather clinical findings to determine continued eligibility for hospice care.
The required narrative of certification must include a statement, written directly above the physician's signature, attesting that the physician confirms that the narrative is based on his or her examination of the patient. In addition, the narrative for the 3rd benefit period and each subsequent benefit period must explain why the clinical findings of the face-to-face encounter support a life expectancy of 6 months or less.
The certification of the physician or nurse practitioner who performs the face-to-face encounter must contain a written attestation that he or she had the face-to-face encounter with the patient. The certification must be in writing; and must be a separate and distinct section or an addendum to the recertification form; and must be clearly titled. If done by a nurse practitioner, the nurse practitioner must state that his or her clinical findings from the face-to-face encounter were provided to the certifying physician.  Moreover, all certifications and recertifications must be signed and dated by the physician(s), including the benefit periods to which the certification or recertification applies.
Durable Medical Equipment
Because of fraud and billing irregularities, the requirement that a beneficiary must have a face-to-face encounter with a physician for the receipt of certain specified durable medical equipment (DME) is long standing – specifically for a power mobility device (PMD) used as DME. Implementation of the DME face-to-face encounter requirement, including amendments to it made by the Affordable Care Act, is ongoing and has not been paused or delayed like the home health and hospice requirements.
Medicare law requires that a prescription for the PMD must be in the form of a written order completed by the physician or treating practitioner who performed the face-to-face examination and received by the PMD suppler within 45 days of the face-to-face encounter. In addition, the law provides that the word "physician" has the same meaning as in section 1861(r)(1) of the Medicare Act. Note, however, for beneficiaries discharged from a hospital, a separate face-to-face encounter is not required as long as the physician or treating practitioner who performed the face-to-face examination of the beneficiary in the hospital issues a PMD prescription, with supporting documentation, within 45 days after the date of discharge.
The Affordable Care Act (ACA) amends the Medicare statute to provide that the Secretary shall require that an order for specified DME must be written by a physician, a physician assistant, a nurse practitioner, or a clinical nurse specialist who has had a face-to-face encounter with the patient (including tele-health) during the 6 month period preceding the written order or other reasonable time frame as determined by the Secretary.
Advocates should continue to monitor developments. The regulations discussed above provide a useful framework for advocates in their efforts to establish necessary services, particularly when disputes arise about the needs of specific beneficiaries. The ability to show that a face-to-face encounter with a physician or other qualified healthcare provider has occurred, including all necessary assessments and certifications, will be key to success.
 The Affordable Care Act of 2010 (ACA), Pub. L. 111-148, enacted March 23, 2010,
 See e-mail notice delaying CMS’ expectation of compliance available at: http://cma.benfredaconsulting.com/wp-content/uploads/2011/01/11_01.10.FaceToFaceDelayLetterOf12.23.10.pdf
 75 Fed. Reg. 70372- 70486, November 17, 2010.
 42 C.F.R. § 424.22(a)(1)(v).
 Ibid C.F.R. §424.22(a)(1)(C).
 Ibid. § 424.22(a)(1)(v).
 Ibid. §424.22(a)(1)(v)(A).
 Ibid. §424.22(a)(1)(v)(B).
 Ibid. §424.22(b)(1).
75 Fed. Reg. 70428, November 17, 2010
 Ibid. §418.22(a)(4).
 Ibid. §418.22(b)(3)(iii).
 Ibid. §418.22(b)(3)(v).
 Ibid. §418.22(b)(4).
 Ibid. §418.22(b)(5).
See 42 C.F.R. §410.38(c) (Aug. 2005). The Secretary’s authority to specify items of DME to be subject to the face-to-face requirement is found in §1834(a)(11)(B) of the Social Security Act, 42 U.S.C. §1395m(a)(11)(B). Further, the Secretary of Health and Human Services, (the Secretary), has been given the authority to apply the face-to-face requirement to other areas of Medicare to reduce waste, fraud, and abuse as she deems appropriate. ACA §6407(c). The Secretary has also been given the authority to apply the face-to-face requirement to Medicaid services if she deems it would reduce waste, fraud, and abuse. Id. §6407(d).
 42 C.F.R. §410.38(c).
See §1861(r)(1) of the Social Security Act, defining a physician as "a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which he performs such function or action."
See ACA §6407(b).