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Practice Update
New Medicare Regulations Require Face-to-Face Physician Encounters for DME Products
December 17, 2012
By Michael Gennett and Martin Dix

On November 16, 2012, the Centers for Medicare & Medicaid Services ("CMS") published a final rule making various changes to payment policies under the Physician Fee Schedule. Included in this rule 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 asses, evaluate, and/or treat the patient for the medical condition that supports the need for the DME product. This face-to-face encounter has already been a requirement for power wheelchairs for some time. CMS is now extending this requirement to the following:

• Transcutaneous electrical nerve stimulation units
• Rollabout chair
• Oxygen and respiratory equipment
• Hospital beds and accessories
• Traction-cervical
• 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

Not only must the face-to-face encounter be documented in the patient's medical record, but it must occur on the date of the written order, or up to six months before the written order. If performed by a non-physician practitioner, it must be signed or co-signed by the physician.  While the physician is required to provide records showing the face-to-face encounter to the DME provider, a copy of the face-to-face encounter must be maintained by the DME provider for seven years and must be provided to CMS upon request.  Under certain circumstances, the face-to-face may occur via telehealth.

These requirements are slated to take effect July 1, 2013. There will undoubtedly be audits conducted by CMS and its contractors beginning after the effective date to assure compliance and to seek refunds where this requirement is not being met.
This Akerman Practice Update is intended to inform firm clients and friends about legal developments, including recent decisions of various courts and administrative bodies. Nothing in this Practice Update should be construed as legal advice or a legal opinion, and readers should not act upon the information contained in this Practice Update without seeking the advice of legal counsel. Prior results do not guarantee a similar outcome.  

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