This transcript has been auto generated
00;00;00;00 - 00;00;30;00
Meg Pekarske
Hello and welcome to Hospice Insights: The Law and Beyond where we connect you to what matters in the ever-changing world of hospice and palliative care. Let's Face (to Face) It: Important Changes to Hospice Face-to-Face Attestation Requirements and Other Tidbits from the 2026 Hospice Final Rule. Andrew, I'm so excited you've been on hiatus a little for a little while.
00;00;30;00 - 00;00;35;02
Meg Pekarske
You had a baby and now you're back. And so excited for you to be here.
00;00;35;04 - 00;00;41;08
Andrew Brenton
Yes. Thank you. I'm. Yeah, very excited, to be here. And I miss doing this with you.
00;00;41;10 - 00;01;14;02
Meg Pekarske
Yeah. Well, you know, this this final rule, I mean, compared to some years where, you know, I'm just thinking back to. Was it funny, 20 with the election changes and all that stuff, there was like, you know, a lot to digest. I mean, the stuff I think in the hospice final rule, I mean, putting like hope aside is like, that's the whole big thing that we're not going to talk about, here so much.
00;01;14;02 - 00;01;39;19
Meg Pekarske
But I think it was generally some good news. It wasn't like things that are going to make our life harder or and actually, I think the things that we're going to talk about are either clean up or how can we make hospices lives easier. And so, so that start out with what change with the face to face.
00;01;39;19 - 00;02;10;22
Meg Pekarske
The added attestation requirement and just as background. So face to face was started in 2011 and there was the requirement that you had to a test, you did the Z and you had to, you know, sign that there was no dating requirement on the signature on the face to face attestation, even though we know Andrew, a lot of contractors were expecting that.
00;02;10;22 - 00;02;38;08
Meg Pekarske
And we'd had to say, well, actually, the law didn't have, signature date requirement. And so that's sort of a backdrop. I what we're going to talk about in the change that they made, I really feel like, why didn't we first write those 14 years ago, the way they have now changed it? Because I think it makes a lot more sense and is reflective of what normal people are doing.
00;02;38;11 - 00;02;43;00
Meg Pekarske
So so kick it off. What what is the change and why is it helpful?
00;02;43;03 - 00;03;28;24
Andrew Brenton
Well, yeah, to your point, normal people write normal hospice, based based practitioners are typically, you know, when they're visiting with the patient, they're afterwards putting together a clinical note on that. Right. Summarizes of the clinical findings of that visit. So typically that's, you know, already exist as like a separate record within the medical records. So, CMS then the final rule here is basically saying that, well, if you already have the face to face clinical note, and if it's signed by the face to face practitioner and if there's a signature date and if it has kind of, elements that you would already expect the clinical note to have, like the date of
00;03;28;24 - 00;04;15;07
Andrew Brenton
the visit, the name of the patient, and that document on its own can be your face to face attestation. You don't need to have a separate document or a separate part of the certification form, or the face to face attestation. So DMs does want the face to face attestation now to be signed and dated. But kind of the the good news here, the flexibility is that we have another option for satisfying the face to face attestation, which is that we can point to the, you know, probably already existing face to face clinical note again, has to be signed as to be dated, but presumably already that's happening.
00;04;15;07 - 00;04;37;14
Andrew Brenton
So you're right. And, why didn't we do this 15 years ago? We're probably already doing it. So I yeah, I think that, CMS for kind of recognizing that this is an efficiency, it is kind of, you know, a burden, off our shoulders that we don't have to do a separate business adaptation. We can just rely on that clinical number.
00;04;37;17 - 00;05;02;10
Meg Pekarske
Yeah. And I think it when we were talking about this, you know, and going back in the time machine and it's, isn't the face to face that it's attestation requirement in the statute, like, how can they just go it changed this and it you know, what's important to note is yes, this face to face requirement was in the statute.
00;05;02;12 - 00;05;45;25
Meg Pekarske
But it gave liberties to CMS to create regulations to implement that requirement. And so, you know, they they obviously could have done this. As we said, back in 2011, there was no magic to what they required originally. And so is I don't know who is that doing separate clinical notes, I think is, like for clarity sake, you probably want that clinical note that you're using as a face to face, probably to say face to face encounter or whatever, which I think most of our clients, you know, are doing that.
00;05;45;25 - 00;06;25;09
Meg Pekarske
But, you know, this is like, essentially you don't need to do double duty here is like signing date your face to face encounter note and separately sign and date and attestation. You know, to that effect. But I think for purposes of compliance and thinking about timing, because there is this dating aspect to the signature, you know, you do want to make sure that if you're just going to do the attestation, meet it that way, that you need to make sure that that signature is behind.
00;06;25;11 - 00;06;54;04
Meg Pekarske
So, oftentimes people are completing that the day of the visit. But if there's, you know, some gap there. Another thing Andrew we were talking about was just the importance to remember that the timeliness requirement is from the date of the visit, not the documentation like of the visit. Right. So you have to have the encounter or can't have it more than 30 days before and all that stuff.
00;06;54;04 - 00;07;19;00
Meg Pekarske
So all of that stuff stays the same. So it's, sort of small change. And we've linked to, the, a final rule, and maybe we'll just do the excerpt. So it's very clear, the regulatory text of where that is. But I guess the other interesting thing here, too, was this is really a testament to advocacy.
00;07;19;00 - 00;07;48;25
Meg Pekarske
So this was not originally in the proposed rule, right? This ability, it was people saying, hey, what about this? And and CMS listened and said, yeah, that sort of makes sense to be able to use the clinical note to satisfy this. And so I think, all of the folks out there obviously associations, right, comment letters. But obviously individual hospices do as well.
00;07;48;25 - 00;08;23;21
Meg Pekarske
And you don't know how many people wrote in about this, but I do think that there, you know, exercising your rights to comment is, is meaningful because anyone who does our jobs, there's oodles of information in the rule commentary where they get background about what people's comments, you know, were and the fact that you can make a difference and change totally, by, you know, making your voice heard and sharing your ideas.
00;08;23;21 - 00;08;26;04
Meg Pekarske
And so this is a great example of that.
00;08;26;06 - 00;08;40;05
Andrew Brenton
Totally, totally. Yeah. Applauded. Those who commented and were able to get this, you know, I think fairly important or at least helpful, change for the industry.
00;08;40;08 - 00;09;27;10
Meg Pekarske
So I guess what one other compliance tip here too, is pick a lane here. So like, what are you going to use to satisfy that? I mean, some people may find it easier to just keep using the face to face attestation like do double duty. There's nothing wrong with that. Hopefully there's no inconsistencies between, you know, if you're using two things to satisfy, one requirement that obviously the visit date is consistent and all that, but, if you're I do think that picking a lane, though, and sort of when you get have to do medical record request, what are you submitting for that requirement.
00;09;27;12 - 00;09;56;25
Meg Pekarske
Because I wonder if we might see some early claim denials where people like the contractors might overlook that, because these we saw claim denials when there were clinical notes that satisfied all of the face to face attestation elements. But it wasn't, you know, on this particular form. And so, right, I don't I will just have to watch that to see if they play catch up here.
00;09;56;27 - 00;10;11;00
Andrew Brenton
Yeah, yeah. And this this change goes into effect on October 1st though. Yeah. Not a ton of time for, you know, the Max and other Medicare contractors to kind of be educated on this new requirement.
00;10;11;02 - 00;10;42;21
Meg Pekarske
Yeah. And and so, so I think thinking about how you order your records when you do a record requires by putting that clinical note in this where you're filing your other certification related document, that's just to like, oh, I'm putting it in the clinical no nursing section or physician's section. And you really since it is meeting an aspect of certification requirement, I think making sure you organize it as such.
00;10;42;23 - 00;10;44;25
Meg Pekarske
Yeah, yeah, yeah.
00;10;44;28 - 00;11;15;14
Andrew Brenton
And I guess another point too is if, if you are going to be using the clinical note, to satisfy the face to face attestation requirement, you actually don't that the clinical note doesn't need to have language, you know, saying that the face ID based practitioner's providing, you know, the face to face clinical findings to the certifying position, ease in determining continued eligibility for hospice care.
00;11;15;16 - 00;11;40;02
Andrew Brenton
That has always been a, you know, separate requirement, like a content requirement for the face to face attestation by CMS to say, not only can you use the clinical note as the face to face attestation, but if you do so, you don't have to have that wait. We call that the provision element. It doesn't have to have that language about how the findings are presented to the the certifying position.
00;11;40;02 - 00;11;59;25
Andrew Brenton
So again, to sort of, you know, kind of doubling down on this theme of we're already kind of doing it and wouldn't really be natural for you to include that type of language in a clinical note unless you were doing it solely for like a compliance. And as opposed to this sort of like a, you know, how a clinical note naturally reads.
00;11;59;25 - 00;12;08;24
Andrew Brenton
So again, kind of we're yeah, we've been doing it. CMS is recognizing that allowing us to use that to satisfy this other requirement.
00;12;08;26 - 00;12;43;06
Meg Pekarske
Yeah. And like you said, you don't need to take advantage of this flexibility if you want to documented two ways you can because I think people are really overwhelmed with getting hope implemented. So I think like I could see some people not changing how their EMR functions or training on that. And just like, let's keep this. I know we're doing double duty, but let's just do that because I don't have any mental space, so you're not required to.
00;12;43;08 - 00;13;01;24
Meg Pekarske
It just is something that you can't do. But the other thing we wanted to touch on, which is like fun and exciting, it's sort of a clean up kind of thing. But why don't you explain the other change?
00;13;01;27 - 00;13;34;01
Andrew Brenton
Yeah. So the other change has to do with sort of a clarification, on the the types of hospice positions listed in the regulations who can certify patients as being terminally ill. So as it is, as you said, this is sort of housekeeping. This seems to be clean up and in CMS, in describing these changes in the rule, talks about how the purpose is to kind of create, internal consistency within the regulations.
00;13;34;03 - 00;14;09;17
Andrew Brenton
But I guess though there are two spots in the in the regulations on that specify the types of hospice physicians who can provide the certification on terminal illness. So the for 1822, which is, you know, the certification section lists three types of physicians. The medical director, the physician designee, which is basically a person who acts as the medical director in the medical director's absence, or a team physician, you know, the physician member of the interdisciplinary group.
00;14;09;20 - 00;14;38;16
Andrew Brenton
Those are the three types of physicians who can certify. There's a separate section currently for 1825 that is more focused on admitting patients to hospice. That section only talks about two types of is it hospice physicians? You can certify it doesn't talk about the team physician. So CMS here, all they're doing is they are revising for 1825 to align it with for 1822.
00;14;38;18 - 00;15;08;14
Andrew Brenton
So that across the board, it is clear that these are the three types of physicians who can verify, three types of hospice physicians the medical director, a physician designee, and the team physician. So this this was actually in response to a another comment from the public in a different rulemaking cycle. CMS didn't think that it had the authority, to to make this change in the last rulemaking cycle because they hadn't proposed it here.
00;15;08;14 - 00;15;21;18
Andrew Brenton
They did propose it, and they are making the change. So again, sort of appears to be housekeeping clean up, as opposed to sort of an indication of kind of, new enforcement that we would see down the road.
00;15;21;23 - 00;15;50;15
Meg Pekarske
Yeah, I would hope not, because, I mean, I think that that does reflect practice. And so those are people who are certifying, folks. But I think one thing that just so I feel like the regulations are still somewhat out of date in terms of the use of roles that people have. I mean, in the olden days, a hospice is fairly small.
00;15;50;15 - 00;16;13;17
Meg Pekarske
You even had the what is now like never happens like the volunteer medical director, and then someone who's like available if needed. And like there isn't always, you know, a match. I mean, because you have this volunteer medical director doing the admissions or whatever you weren't getting in and they're doing team and they were doing all that stuff.
00;16;13;17 - 00;16;41;02
Meg Pekarske
But now obviously we have very, very large organizations. You have CMO, CMO may or may not be the medical director, but they're like, you know, I mean, it just I think the terminology is still sort of wonky in terms of, you know, roles, but I think it is important for people to think about that is the regulatory language.
00;16;41;02 - 00;17;11;26
Meg Pekarske
And so, you know, if you have multiple physicians that may staff your, your ID or support ad, like they all probably are team physicians, you don't necessarily just have to have one. Right? So like, you know, anyway, I just I think making sure we're thinking about that because sometimes we think about titles in terms of like business, the staff or titles like prestige.
00;17;11;26 - 00;17;40;00
Meg Pekarske
And it's like, well, the basics are that they think there's three physician types that really matter, and those don't necessarily correspond with the flashy titles. So. So anyway, you know, the duties of of many individuals are going to encompass some of these regulatory designations. But it's doe eyed terminology that isn't always intuitive, like physician designated or designee.
00;17;40;01 - 00;17;42;28
Andrew Brenton
Right. Yeah. Is that something on LinkedIn?
00;17;43;00 - 00;18;18;25
Meg Pekarske
Yeah. Yeah. I mean, I think the terminology I typically use as like medical director and that hospice physician sometimes associate medical directors, but none of that stuff's actually regulatory. Right. Regulatory exactly defined. But so hopefully again, that's not going to be something that leads to fame denials or anything like that. The intention isn't really to say, oh, there's different people or people before that we're allowed to certify now aren't I mean, it just seems like they're trying like you said like not.
00;18;18;25 - 00;18;57;01
Meg Pekarske
So hopefully by miss Hope, these are things that, you know, shouldn't really require much change in practice. You can if you want, but you know, it shouldn't need to be a bunch of education around this. Yeah, but famous last words. Right? But. Right. We'll see. Right. See what happens. Yeah. Because sometimes you do have to educate contractors for the odd changes, because I could see people still looking for face to face attestation to be there, or people have it on their form, but it's not completed.
00;18;57;03 - 00;19;14;11
Meg Pekarske
This happens to. So then you keep it on your form, but it's not completed because you're really using the clinical note. And when stuff is blank, right. Looks like it's not done. And so I would advise not to do that. Yeah. Because blanks are always interpreted as incomplete.
00;19;14;14 - 00;19;16;14
Andrew Brenton
Yeah. Amen. Yeah.
00;19;16;17 - 00;19;23;03
Meg Pekarske
So awesome. Well anything anything else you wanted to share before we hang it up?
00;19;23;08 - 00;19;58;08
Andrew Brenton
I guess my last point, you know, a lot of clients have been asking us about, the face to face telehealth, you know, ability to, you know, doing the face to face account or via telehealth, and how the rule doesn't really get into that. That is true. The rule does CMS in the rule does specify that the explicit ability to do the face to face encounter via telehealth expires on September 30th of this year.
00;19;58;10 - 00;20;24;04
Andrew Brenton
But they're only doing that because that is what Congress, extended it to. And the continuing resolution that passed back in March. So, we do need Congress to act again in order to get that waiver extended beyond September 30th. So for those who are wondering, CMS doesn't believe that it has, you know, authority on its own to extend that.
00;20;24;04 - 00;20;28;26
Andrew Brenton
They do need Congress to act awfully. We don't have a government shutdown.
00;20;28;28 - 00;20;59;24
Meg Pekarske
Yeah. Good point. We are recording this on Thursday, September 18th. So and we're going to release it before September 30th. But hopefully something gets passed between now and the recording time. But, I think my concern is given, you know, the divisions here, might there be a government shutdown potentially, which means that there isn't going to be a funding bill.
00;20;59;26 - 00;21;00;12
Andrew Brenton
Right.
00;21;00;14 - 00;21;36;15
Meg Pekarske
To be signed September 30th to, extend the so and frankly, maybe people have already sort of staffed up to because this isn't the first rodeo that we've been like, you know, a Hail Mary like, oh, wait till midnight. And you had to prepare for worst case scenario. So my guess is folks are still preparing to send people out, in person and have the staffing to do that if needed, because it's probably going to be to the wire if that does happen.
00;21;36;18 - 00;22;08;05
Meg Pekarske
My guess is it's not controversial to extend it. I mean, by my personal commentary is telehealth is can't put, rabbit back on the hat or whatever. Yeah, it's it's here to stay. So I don't think it's controversial to standard. And I don't know that quality has really suffered with using telehealth or anything. To my knowledge, there isn't any data that supports like allergies.
00;22;08;09 - 00;22;34;22
Meg Pekarske
When we started allowing telehealth, call quality or something went down. Nothing that I've seen. So it would seem unusual that they wanted to extend it. But yeah, whether or not we're going to experience a gap where we're not going to be able to use it, and then we will again, one but that's all. Pontification. So yep.
00;22;34;25 - 00;22;36;13
Meg Pekarske
Not our lane. We're not.
00;22;36;13 - 00;22;37;17
Andrew Brenton
Yes.
00;22;37;19 - 00;22;41;25
Meg Pekarske
We're not political advisors or whatever.
00;22;41;25 - 00;22;43;29
Andrew Brenton
No, certainly not here.
00;22;43;29 - 00;22;53;19
Meg Pekarske
Not in DC by AD. But anyway. So well thanks again. This is super fun to do this with you and really helpful for your insights.
00;22;53;21 - 00;22;59;25
Andrew Brenton
You're very welcome. And yeah, great to be back.
00;22;59;27 - 00;23;20;05
Meg Pekarske
Well, that's it for today's episode of Hospice Insights: The Law and Beyond. Thank you for joining the conversation. To subscribe to our podcast, visit our website at huschblackwell.com or sign up wherever you get your podcasts. Until next time, may the wind be at your back.