Proposed DME Prescription Rule Adds More Burdens on Physicians

Medical offices rely on essential professionals like physician assistants (PAs), nurse practitioners (NPs), and clinical nurse specialists (CNSs) to increase practice efficiency and patient visits, as well as support the physician with providing quality medical care. However, Medicare’s recent proposed rule revising the conditions of payment for prescribing Durable Medical Equipment (DME) may cut these practice efficiencies and increase administrative burdens.

The proposed rule will require the physician to document and communicate to the DME supplier that he or their PA, NP, or CNS has met face-to-face with the patient no more than 90 days before the order is written or within 30 days after the order is written. Telehealth services are allowed in rural areas for physicians with an approved Medicare telehealth billing code (encounter is reported with a HCPCS code); however, face-to-face encounters exclude incident-to services. Although a majority of patients are seen before DME are ordered, this rule is expected to increase the number of office visits.

During a patient visit, the practitioner will evaluate the condition that supports the need for each DME ordered as well as conduct a needs assessment. The physician’s documented face-to-face encounter will be less cumbersome than that of a non-physician provider’s evaluation as it is sufficient for a physician to provide the DME supplier with his notes from the patient’s record regarding the patient’s history, physical examination, diagnostic tests, summary of findings, diagnoses, treatment plans, or other related information. If, however, a PA, NP, or CNS conducts the patient visit, the physician must also authorize the evaluation or attest to that meeting.

Attestation may require the physician to sign/cosign relevant sections of the patient’s chart; initial the patient’s history and physical examination for the date of the face-to-face meeting; or require the physician to actually write, sign, and date the following statement: “I, Doctor (Name) (NPI Number) have reviewed the medical record and attest that (PA, NP, or CNS) has performed a face-to-face encounter with (beneficiary) on (date) and evaluated the need for (the item of DME).”

Because physicians will spend extra time to review and authorize DME orders prepared by non-physician providers, Medicare will pay physicians $15 under a “G code” for that time. If a patient requires multiple DME orders and thus a lengthier review of the evaluation, the physician will receive one payment of $15 for the entire evaluation, provided that the physician does not separately bill an E&M code.

The written DME order must list: the patient’s name, item of DME ordered, NPI of the prescribing practitioner, prescribing practitioner’s signature, date of the order, beneficiary’s diagnosis, and necessary proper usage instructions (i.e., duration of use, correct positioning, utilization method) as applicable. If standard practice requires a DME order to have additional information, that order must include these seven minimum criteria and any additional necessary information to support a claim of payment.

The proposed rule significantly expands the list of covered DME items to include: (1) items that currently require a written order prior to delivery per instructions in the Medicare Program Integrity Manual; (2) items that cost more than $1,000; (3) items that Medicare Audit Contractors (MACs) believe are particularly susceptible for fraud, abuse, and waste; and (4) items that Medicare has determined are vulnerable to fraud, abuse, and waste. Medicare estimates that approximately 164 HCPCS DME codes are subject to the rule. Consequently, these criteria could make any DME item susceptible to the rule because MACs may subjectively find a DME item susceptible to fraud and abuse or inflation could push the cost past the $1,000 threshold.

It is also important that physicians check to see that they have properly drafted and signed collaboration agreements with their PA, NP, or CNS. Collaboration is a mutually agreed upon relationship between the non-physician provider and a physician educated, trained, and/or experienced in work related to the non-physician providers' work. Depending on the federal and state laws, the PA, NP or CNS can prescribe, dispense, and administer medical therapeutics or even evaluate the patient for a DME order without the physical presence of a supervising physician, if in collaboration with the physician. Any prescription or evaluation submitted to Medicare or Medicaid for payment without proper agreement, supervision, or reasonable review of a physician may be disallowed or viewed as susceptible to fraud, abuse, or waste.

The proposed face-to-face encounter rules will likely increase the physicians’ time spent on administrative functions. However, Medicare believes the potential reduction in fraud and abuse justifies the additional expenditure of time.

Daniel M. Lindenberg is a member of the healthcare group of the law firm, Halloran & Sage LLP, where he advises a wide range of private physician practices and other providers with mergers, fraud and abuse, and Medicare, Medicaid and HIPAA compliance. With a bioethics background, Lindenberg also works closely with physicians and nurses on ethics committees and institutional review boards of local hospitals. E-mail him here.

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