Should NPs Be Making These Nursing Home Visits?

Carolyn Buppert, MSN, JD

Disclosures

December 16, 2014

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Question

A nurse practitioner (NP) is making nursing home visits, but the collaborating physician has not made the initial evaluation visit or alternating visits. Can the NP get into trouble?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

The NP who wrote to Medscape provided more details about her situation:

I am a new NP working with a physician seeing patients in the nursing home setting. I am aware of regulations (both federal and those specific to the state of California, where I live) that require the physician to perform the initial comprehensive visit for a patient in a skilled setting, as well as alternating visits while the patient is still in a skilled facility. However, the busy physician won't see these patients at all, expecting that I will perform all nursing home visits. Although I am clinically capable of performing these visits, I am unsure as to my personal liability for the physician not following the regulations. What is my responsibility for performing visits I know to be in violation of regulations? Might I be considered working outside my scope when performing these visits? I don't want to start my career by getting myself into trouble.

The comprehensive visit for a nursing home patient is within the scope of practice for an adult, family, or gerontology NP, so that is not a problem. However, you are justified in your worry about liability for performing visits that you aren't authorized by federal law to perform. Specifically, Medicare rules specify that a physician must perform the initial comprehensive evaluation, which is the visit during which the physician performs a thorough history and examination and orders the plan of care. A physician has 30 days from the date of admission or readmission to perform this visit. If a patient needs evaluation and management before this comprehensive visit takes place, an NP may see the patient and bill for a "subsequent visit," even though that visit may be performed before the "initial visit."

In a nursing facility (NF), in contrast to a "skilled nursing facility" (SNF), there may be more leeway for an NP to perform the initial comprehensive evaluation.

Here are excerpts from Medicare's MLN Matters MM4246, "Nursing Facility Services (Codes 99304-99318)," last updated on October 23, 2012:

...[T]he initial visit in both SNFs and NFs is defined (per the Survey and Certification memorandum (S&C-04-08), dated November 13, 2003, as the initial comprehensive assessment visit during which the physician completes a thorough assessment, develops a plan of care and writes or verifies admitting orders for the nursing facility resident.

It must occur no later than 30 days after admission. In the SNF setting, the physician must perform this initial visit. In the NF setting, a qualified NPP, [non-physician practitioner] not employed by the NF, may perform the initial visit when permitted by state law, and when (as in all Evaluation & Management [E/M] visits) the NPP meets all Medicare and physician collaboration and supervision requirements, and the service falls within the scope of practice and licensure for the state where the service occurs....

In the SNF setting, after the initial visit by the physician, physicians may delegate alternating federally mandated physician visits to qualified NPPs (whether they are employed or not by the SNF).

Qualified NPPs in the NF setting, who are not employed by the NF, may, at the option of the state, perform federally mandated physician visits including the initial visit....

Only a physician may report [CPT] 99304-99306 for an initial visit performed in an SNF or NF except for (as explained above) those performed by a qualified NPP in the NF setting who is not employed by the facility and when state law permits.

A readmission to a SNF or NF has the same payment policy requirements as an initial admission in both settings....

[CPT] Codes 99307-99310 (Subsequent Nursing Facility Care, per day) shall be used to report federally mandated physician visits and other medically necessary visits....

Medicare will pay for federally mandated visits that monitor and evaluate residents at least once every 30 days for the first 90 days after admission and at least once every 60 days thereafter. You shall also use these codes to report medically necessary E/M visits even if they are provided prior to the initial visit by the physician. You shall also use these codes to report medically complex care in an SNF upon discharge from an acute care visit, again even if the visits are provided prior to the physician's initial visit.[1]

The NP who submitted this question isn't billing her services in error, but her employer is. Given that the NP is participating in this scheme by performing an examination that she knows must be performed by a physician, the NP may be cited in any investigation of the physician's billing. The safest thing for the NP to do would be to describe the problem to the physician, show the physician the rules, and submit all encounter forms using the current procedural terminology [CPT] codes for subsequent visits. If the physician chooses to ignore the rules and changes the NP's CPT codes, then it is he alone who will face fines and penalties if audited.

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