CMS to Use Enforcement Discretion to Help States Comply with the Medicaid Home Health Final Rule

On April 5, 2018, the Centers for Medicare & Medicaid Services (CMS) issued an Informational Bulletin regarding compliance with the Medicaid Home Health Final Rule (the “Medicaid HH Final Rule”). The Medicaid HH Final Rule was made effective as of July 1, 2016; however, CMS delayed compliance with the Medicaid HH Final Rule for up to two years from the effective date due to the numerous administrative and budgetary constraints facing state Medicaid agencies. In keeping with this prior policy, the Informational Bulletin announced that CMS intends to use its enforcement discretion to work with States to achieve compliance with the Medicaid HH Final Rule prior to July 1, 2018.

Most notably, the Medicaid HH Final Rule requires an ordering physician to document that a face-to-face (“F2F”) encounter occurred between an allowed provider and the Medicaid beneficiary during a required timeframe (within 90 days before or 30 days after the start of care) in order to authorize home health services. This provision sought to align the Medicaid home health F2F requirements with the corresponding Medicare home health F2F requirements. However, both the Medicare and Medicaid F2F documentation requirements have been met with resistance from providers in the Home Health industry, who complain that the requirement is overly burdensome.

CMS states that the HH Final Rule does not limit a State’s flexibility to define the scope of its home health benefit. However, the Informational Bulletin expressly highlights three provisions of the HH Final Rule that are not open to CMS’s discretionary flexibility and must be fully complied with by all States: (1) States may not make coverage of home health services contingent upon the beneficiary needing a nursing or therapy service; (2) States must provide beneficiaries with a reasonable procedure to request medical equipment that does not appear on the State’s pre-approved list of medical equipment; and (3) States may not limit home health services to beneficiaries who meet the homebound standard. Thus, the Informational Bulletin is relevant for Home Health providers, who should expect all States to have implemented the legislation to comply with, at a minimum, the three requirements stated above by July 1, 2018, and to have fully compliance with the Medicaid HH Final Rule shortly thereafter.

The Informational Bulletin directs any State unable to fully comply with the Final Rule by July 1, 2018 to contact CMS by May 31, 2018 and to identify those provisions of the Final Rule with which it will be unable to comply. CMS will assess each state’s compliance needs on a case-by-case basis and has discretion to work with these States to identify alternative compliance strategies, implement risk mitigation strategies, and develop a timeline for future compliance. Providers should closely monitor applicable States’ implementation legislation pertaining to Medicaid F2F requirements in order to ensure such compliance measures are adequate and timely.

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