Serious doctor working on laptop

Confusion continues to obfuscate the intent of this new regulation, creating uncertainty for coding, billing and compliance.

There is a hierarchy in coding: the Official Coding and Reporting Guidelines and the American Health Association (AHA) Coding Clinics give recommendations on how to derive the correct code, but the ultimate, definitive source is the Tabular List.

Final rules are often lengthy, which I will attest to as someone who has slogged through their thousands of pages; however, David Glaser, an esteemed lawyer on Monitor Mondays, recently explained to me that the actual regulation is short. What you read in the Federal Register is the Preamble, the commentary, the exposition, similar to the Official Guidelines.

David and I have been having a lively discussion about the new rule regarding split/shared visits. Such a service is not provided in an office setting. This is a medically necessary visit provided in part by a physician and in part by a nonphysician practitioner (NPP, e.g., physician assistant/associate, nurse practitioner, etc.).

If an evaluation and management (E&M) service is provided as a split/shared visit, it is either billed at 100 percent for the physician or 85 percent of the physician fee schedule rate, if billed under the NPP. The 2022 Final Rule regarding the Physician Fee Schedule (42 CFR 415.140) has fundamentally changed how to determine who bills for split/shared visits.

Historically, a split/shared visit was awarded to the physician if he or she handled the “substantive portion” of the visit, the definition of which was not clearly established. Often, both parties contributed to each element of the visit components, but if the physician had a face-to-face encounter and documented their substantive contribution to the total service, they could claim the visit. The concern was that perhaps some physicians were not providing sufficient contribution to the service to be entitled to bill it at the full 100 percent.

The 2022 Final Rule has made two very significant changes. One is the requirement of performing a component in its totality, and the other is transitioning to a time-based service.

2022 is being considered a transition year, when either the substantive portion of one of the key components (i.e., history, physical examination, or medical decision-making) may be performed in its entirety, or the billing provider must spend more than half the qualifying time performing the permissible elements of the service (e.g., preparation to see the patient, reviewing results of tests or consultative reports, obtaining or reviewing the history, performing a medically appropriate physical examination, counseling the patient and family, or ordering medications, tests, or procedures; as well as creating documentation). In 2023, time will be the only determinant of split/shared visits.

The regulation itself defines a “substantive portion” as “more than half of the total time spent by the physician and the nonphysician practitioner.” The Federal Register explanation muddies the water in the section regarding “distinct time.” First, it says that “the distinct time of service spent by each physician or NPP furnishing a split (or shared) visit would be summed to determine total time, and who provided the substantive portion (and, therefore, bills for the visit).” In the next breath, it says that “this would be consistent with the CPT E&M Guidelines stating that, for split (or shared) visits, when two or more individuals jointly meet with or discuss the patient, only the time of one individual should be counted.”

I’m not sure that this is consistent.

Does the total time include one portion of overlapping time, or two? This was relevant in critical care time, where historically only one provider could claim a given moment in time. For instance, if a hospitalist and an intensivist were both at a patient’s bedside, only one of them could claim critical care time. Put aside the fact that this has been changed, too, in the 2022 Final Rule.

My reading and that of many of the knowledgeable folks whom I have consulted is that for the conjoint time, only the physician or the NPP can be credited with that time: one or the other. David disagrees, and posits that the regulation says you would count the time twice for “total time.” I can see his point from the verbiage. Unfortunately, their example is not enlightening.

Here is the question to ask:

Say the physician and NPP see the patient together for 15 minutes. The physician spends 10 more minutes doing activities that would count towards qualifying time. The NPP spends 12 minutes checking labs, making calls, and documenting. Is the calculation:

  • 15 doctor + 15 NPP + 10 doctor +12 NPP = 52 total minutes, and the NPP has 27/52 minutes (> 50 percent), so they bill under the NPP; or
  • 15 doctor + overlapping NPP time is nullified + 10 doctor + 12 NPP = 37 minutes of distinct time, and with the physician claiming the 15 minutes of overlapping time, 25/37 minutes (>50 percent), bill under the doctor?

What would happen if the physician and the NPP have exactly the same amount of time, because the Rule says, “more than half”? Which runner does the tie go to?

The reality of taking care of patients is that a lot of the specified qualifying time spent is what we used to refer to as “scut work.” There is no glory in tracking down lab results, entering orders, or filling out paperwork. My prediction is that post-COVID, there are going to be many adjustments needing to be made to account for a workforce shortage. Shoehorning split/shared visits into only allowing for NPPs to bill may adversely impact patient care, and will certainly affect practices’ bottom lines.

I think the Centers for Medicare & Medicaid Services (CMS) was really trying to avoid paying physicians who peep their heads in for a hot second and then bill at 100 percent, and I support that. In order to perform a split/shared visit, the physician must be value-added. I used to do my own history and medically appropriate physical examination of every patient seen on my shift who was being attributed to me. I would always discuss the medical decision-making with my NPP, and we did what I approved. Approximately 25 percent of the time, I changed the plan according to my experience and knowledge base, and my alteration was important for the patient’s care. I cannot swear that I spent more than 50 percent of the shared time with the patient (E&M services in the ED were not time-based), but I still believe I was rightly entitled to bill under me. I was directly responsible for the patient’s care and outcome.

I believe a critical piece of this puzzle will be a compliant attestation (in addition to affixing the correct modifier, indicating that this is a split/shared visit). It will need to say some variation of:

This was a split/shared visit. I attest that I spent [X] number of minutes out of a total [Y] number of minutes engaging in activities such as, but not limited to (when not separately reported): preparation, obtaining history, performing a medically appropriate physical exam, counseling and education, ordering appropriate medications/treatment/testing, referring and communicating with consultants, independently interpreting and discussing results of tests, determining a plan of action, performing care coordination, and creating documentation.

A best practice may be allowing for indicating which of the activities one is claiming, likely by an electronic solution.

From a physician’s perspective, the NPP is allowing the attending to see more patients, and to take excellent care of all of them. You can be sure that if there is a malpractice action, the lawyers are not going to exclude the attending physician if the billing was done under the NPP’s UPIN.

As the physician, I am the captain of the ship, and the buck stops here. Its seems like I should be entitled to that buck if the NPP and I have overlapping time.

Programming Note: Listen to Dr. Erica Remer as she cohosts Talk Ten Tuesdays today with  Chuck Buck at 10 Eastern.

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