CMS proposes changes to Medicare rules governing certain Evaluation and Management visits
On July 13, 2021, CMS released the 2022 Medicare Physician Fee Schedule Proposed Rule (Proposed Rule). In addition to the standard proposals related to rate setting for the coming year, the Proposed Rule also includes a number of proposed policy changes, several of which relate to payment for Evaluation and Management (E/M) visits.
Split or shared E/M visits
Split or shared E/M visits are face-to-face E/M visits where a visit is performed by both a nonphysician practitioner (NPP) and a physician. CMS had previously included guidance on billing split or shared visits in the Medicare Claims Processing Manual, but removed the relevant sections earlier in 2021 in response to a petition filed under the Good Guidance Practices regulation, 45 C.F.R. § 1.5, which prohibits CMS from relying on subregulatory guidance that is not based on a statute or regulation. In this Proposed Rule, CMS proposes “to refine [its] longstanding policies for split (or shared) E/M visits to better reflect the current practice of medicine, the evolving role of non-physician practitioners (NPPs) as members of the medical team, and to clarify conditions of payment that must be met to bill Medicare for these services.” Specifically, CMS proposes:
- To define a split (or shared) E/M visit as evaluation and management (E/M) visits provided in the facility setting (defined as an institutional setting where incident to billing is prohibited) by a physician and an NPP in the same group.
- The practitioner who provides the substantive portion of the visit (more than half of the total time spent) would bill for the visit. Overlapping time when the physician and NPP met together is only counted once. The Proposed Rule includes a listing of activities that time spent performing can be counted, regardless of whether they involve direct patient contact:
- Preparing to see the patient (for example, review of tests)
- Obtaining and/or reviewing separately obtained history
- Performing a medically appropriate examination and/or evaluation
- Counseling and educating the patient/family/caregiver
- Ordering medications, tests or procedures
- Referring and communicating with other health care professionals (when not separately reported)
- Documenting clinical information in the electronic or other health record
- Independently interpreting results (not separately reported) and communicating results to the patient/family/caregiver
- Care coordination (not separately reported)
- Practitioners would not be permitted to count time spent on the following:
- The performance of other services that are reported separately
- Teaching that is general and not limited to discussion that is required for the management of a specific patient
- Split (or shared) visits could be reported for new and established patients, and initial and subsequent visits, as well as prolonged services and critical care services. In addition, split (or shared) visits can be performed in any institutional setting, including skilled nursing facilities and nursing facilities (unless a particular service is required by the Conditions of Participation at 42 C.F.R. § 483.30 to be performed in its entirety by a physician).
- A modifier will need to be reported on claims for split (or shared) visits to help ensure program integrity.
- There must be documentation in the medical record to identify the two individuals who performed the visit.
- The individual providing the substantive portion must sign and date the medical record.
CMS is soliciting comments on whether there should be a different list of qualifying activities for determining total time and substantive portion of split (or shared) visits provided in emergency departments as well as how “in the same group” should be defined. The new split (or shared) E/M visit rule would be codified in regulation at 42 C.F.R. § 415.140.
Critical care services
CMS is also using the Proposed Rule to “to refine [its] longstanding policies for critical care services.” Under the Proposed Rule:
- The definition of critical care services would follow the CPT prefatory language for the critical care visit codes:
- The direct delivery by a physician(s) or other qualified healthcare professional (QHP) of medical care for a critically ill/injured patient in which there is acute impairment of one or more vital organ systems, such that there is a probability of imminent or life-threatening deterioration of the patient’s condition. It involves high complexity decision-making to treat single or multiple vital organ system failure and/or to prevent further life-threatening deterioration of the patient’s condition.
- Under current Medicare policy, a QHP is an individual who is qualified by education, training, licensure/regulation (when applicable), facility privileging (when applicable) and the applicable Medicare benefit category to perform a professional service within their scope of practice and independently report that service.
- Some services would be bundled into the critical care service and not separately billable:
- Interpretation of cardiac output measurements (93561, 93562)
- Chest X rays (71045, 71046)
- Pulse oximetry (94760, 94761, 94762)
- Blood gases, and collection and interpretation of physiologic data (for example, ECGs, blood pressures, hematologic data)
- Gastric intubation (43752, 43753)
- Temporary transcutaneous pacing (92953)
- Ventilator management (94002-94004, 94660, 94662)
- Vascular access procedures
- Critical care services furnished by a single physician or NPP or by more than one practitioner in the same group with the same specialty are reported with CPT code 99291 for the first 30-74 minutes of services provided to a patient on a given date and CPT code 99292 for additional 30-minute time increments provided to the same patient. This is a change from existing CMS policy which requires a single physician or NPP to perform the initial 30-74 minutes of critical care service each day.
- Critical care services can be furnished concurrently to the same patient on the same day by more than one practitioner representing more than one specialty, regardless of group affiliation. These concurrent critical care services must be medically necessary and not duplicative.
- Critical care services can be furnished as split (or shared) visits. The list of activities that can count toward total time spent for purposes of determining substantive portion for split (or shared) critical care visits will incorporate the activities described in CPT codes 99291 and 99292.
- CMS rejects the CPT rule that critical care and other E/M visits may be furnished to the same patient on the same date by the same provider and would not allow other E/M visits to be billed for the same patient on the same date as a critical care service when the services are furnished by the same practitioner, or by practitioners in the same specialty and same group to account for overlapping resource costs. CMS is soliciting comments on whether this is the right approach.
- Critical care visits cannot be reported during the same time period as a procedure with a global surgical period.
Services of teaching physicians
In light of the recent changes to coding for office/outpatient E/M visits that now permit the practitioner to select the E/M visit level to bill based either on medical decision making or total time personally spent by the practitioner, questions were raised about how teaching physicians who involve residents in furnishing care should consider time spent by the resident in selecting the appropriate E/M level. Under the current Medicare regulations, if a resident participates in a service furnished in a teaching setting, a teaching physician can bill for the service only if they are present for the key or critical portion of the service. Additionally, under the “primary care exception” to that policy, the teaching physician can bill in certain teaching hospital primary care centers for certain services furnished by a resident without the physical presence of a teaching physician.
In this Proposed Rule, CMS proposes that the time when the teaching physician was present can be included when determining the E/M visit level. But for services furnished pursuant to the primary care exception, only medical decision making can be used to select the E/M visit level. CMS explained its reasoning for this policy for services furnished under the primary care exception was “to guard against the possibility of inappropriate coding that reflects residents’ inefficiencies rather than a measure of the time required to furnish the services.”
CMS is soliciting comments on whether its assumption that medical decision making is a more accurate indicator of the appropriate level of the visit relative to time in the context of the primary care exception for services furnished by residents and billed by teaching physicians in primary care centers. CMS is also soliciting comments on whether time is an accurate indicator of the complexity of the visit and how teaching physicians might select office/outpatient E/M visit level using time when directing the care of a patient that is being furnished by a resident in the context of the primary care exception.
CMS is accepting comments to this Proposed Rule until September 13, 2021.