On July 13, 2021, the Centers for Medicare & Medicaid Services (“CMS”) released the calendar year 2022 Medicare Physician Fee Schedule proposed rule (the “Proposed Rule”). The Proposed Rule describes CMS’ plans to revise Medicare payment policies and rates for the upcoming year. In the Proposed Rule, CMS sets forth its proposed changes in the regulations which codify its long-standing guidance on billing for “split (or shared)” evaluation and management (“E/M”) visits. Split (or shared) visits are E/M visits provided in part by both physicians and non-physician practitioners (“NPPs”). NPPs generally include nurse practitioners, physician assistants and advanced practice practitioners.
As a general matter, Medicare reimburses physicians at a higher payment rate than NPPs for various services. In the physician office setting, when a patient visit is performed in part by a physician and a NPP, the physician is permitted to bill for the visit, provided the visit meets the Medicare requirements for services furnished “incident to” a physician’s professional services. Historically, CMS relied on guidance found in the Medicare Claims Processing Manual (“MCPM”) to permit a physician to bill for visits performed in part by a NPP outside of the physician office setting. In May 2021, in response to a petition submitted under the U.S. Department of Health and Human Services Good Guidance Practices Regulation, CMS formally withdrew the MCPM sections specifically addressing split (or shared) visits and indicated that CMS would reissue the guidance as proposed regulations.
The Proposed Rule specifies the requirements that must be met in order for a physician or NPP to bill a split (or shared) visit in a hospital, skilled nursing facility (“SNF”) or other facility setting. If passed, the Proposed Rule will expand the clinical scenarios under which a healthcare professional can bill for services performed in part by another practitioner and would also impose restrictions on which performing practitioners can bill for the split (or shared) visit.
ANALYSIS AND DISCUSSION
In addition to clarifying when split (or shared) visits may be billed to Medicare, the Proposed Rule modifies CMS policy, permitting physicians and NPPs to bill for split (or shared) visits for both new and established patients, critical care services and certain E/M visits in a SNF. The prior guidance limited split (or shared) visit billing to established patients and prohibited billing for split (or shared) visits involving critical care services or in SNFs. The Proposed Rule defines “split (or shared) visit” as E/M visits performed in part by a physician and NPP in institutional settings for which “incident to” payment is not available. This is intended to distinguish between the policy applicable to services furnished “incident to” the professional services of a physician in a physician office setting and the policy applicable to services furnished in a facility setting on a split (or shared) basis.
Additionally, CMS is proposing to establish which of the physician or NPP performing a split (or shared) visit can bill Medicare for the visit. This is a very important concept because the visit is paid at a higher rate if the physician submits the claim rather than the NPP. Historically, in determining whether a physician or an NPP may bill for a split (or shared) visit, either the physician or NPP could bill for the service so long as the billing provider performed a “substantive portion” of the visit. In the Proposed Rule, CMS seeks to codify this policy by using time—as opposed to medical decision-making or a key component of the E/M visit—as the key factor in determining whether the physician or the NPP performed the substantive portion of the visit. The Proposed Rule would further limit the billing provider to the individual who performed more than 50% of the visit. In addition, CMS is proposing a list of activities that may count toward the total time of the E/M visit for purposes of determining the provider who performed the substantive portion of the visit. Under the Proposed Rule, documentation in the medical record will need to identify both professionals who performed the visit and the individual who performed the substantive portion (and bills for the visit) would need to sign and date the medical record.
Previous MCPM guidance generally prohibited the billing of split (or shared) visits for new patients. In the Proposed Rule, CMS is proposing important clarifications to its policy to permit either a physician or a NPP to bill for split (or shared) visits for both new and established patients and for initial or subsequent visits. This change expands the availability of split (or shared) visit billing in the facility setting. Under the previous MCPM guidance, CMS did not permit healthcare professionals to bill for split (or shared) visits for critical care services or for E/M visits furnished in a SNF. In the Proposed Rule, CMS is proposing to permit healthcare providers to bill for split (or shared visits) that are critical care services. The Proposed Rule also states that no other E/M visit can be billed for a patient on the same date as critical care services are furnished when the services are furnished by the same professional (or professionals) in the same specialty and group. The Proposed Rule also expands split (or shared) visit billing to permit E/M visits to be furnished by a physician and a NPP in a SNF setting.
In the Proposed Rule, CMS explicitly declined to define “same group” for purposes of the new split (or shared) visit billing rule and is seeking comments on how to define same group. While the Proposed Rule retains the requirement that split (or shared) visits be performed by a physician and NPP who are in the same group, CMS noted that it considered several options, including using the “group practice” definition under the Stark Law or considering practitioners under the same billing tax ID number to be the same group practice. CMS also noted that some of the options it evaluated do not align with the definition of “group” used for Medicare enrollment purposes. This determination is of significant import because if the two practitioners are determined not to be in the same group, neither of them may be able to bill for the visit if neither performed a complete E/M visit. CMS, under the Proposed Rule, will not pay for partial E/M visits.
Finally, the Proposed Rule seeks to create a claim modifier that would be mandatory for split (or shared) visits. This modifier would allow CMS to identify services furnished in part by NPPs and allow for more targeted review of services furnished by physicians and NPPs.
In summary, the Proposed Rule provides both new opportunities for billing split (or shared) visits, but also restricts the reimbursement opportunity for services that are performed primarily by NPPs. Providers have an opportunity to provide comments to the Proposed Rule, which must be submitted by September 13, 2021.
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