The Center for Medicare & Medicaid Services (“CMS”) recently published a final rule implementing several changes to policies relating to payment of physicians.  Among the changes is a new requirement that certain items of durable medical equipment (“DME”) 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 to evaluate the patient for the medical condition for which the DME product is needed.

This rule has previously been required for power wheelchairs, and now applies to transcutaneous electrical nerve stimulation units, rollabout chairs, oxygen and respiratory equipment, hospital beds and accessories, traction-cervical equipment, and 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.

The face-to-face encounter must be documented in accordance with specific CMS requirements, and include at a minimum: (1) the beneficiary name; (2) the item of DME ordered; (3) prescribing practitioner National Provider Identifier; (4) the signature of the prescribing practitioner; and (5) the date of the order. The supplier must retain the written order and supporting documentation for seven years after the date of service, and make it available to CMS on request.

According to the new rule, the face-to-face requirement is a condition of payment under the Medicare and Medicaid programs, and the failure comply with this rule may give rise to liability under the False Claims Act in some situations.

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