Often, the rules do not make sense from a compliance or best-practices perspective.
Medicare has a reputation of putting out policy that many feel is so confusing, you would have to have a law degree to understand half of it. In 2022, things have not changed. Not only are the rules written with language that has the reader having to take several passes at it before even getting the gist, the rules do not make sense from a compliance or best-practices perspective.
The Centers for Medicare & Medicaid Services (CMS), U.S. Department of Health (HHS), and the HHS Office of Inspector General (OIG) routinely post fraud-and-abuse scenarios in which various healthcare providers may have acted in bad faith in how they interpreted and applied the Medicare policies from the Medicare Integrity Manual and/or final rules, but when the rules are not clear or do not make sense, even at the common-sense level of application, you have to wonder why policymakers can’t use lay terms and make the rules black and white for their stakeholders.
Here are some 2022 examples that are leaving the door open for not only continued misinterpretation of the rules, but for potential non-compliance and possible medical-legal challenges.
In 2022, evaluation and management (E&M) services may be billed as shared or split services when provided in a facility setting, according to Medicare Claims Transmittal 11146, rev. 11181, Medicare Processing Manual 30.6.18.
In 2021, CPT® added “shared visits” language into the new 2021 office visit documentation guidelines, when leveling a visit based on time, but in 2022, CMS is no longer allowing shared services in an office setting (30.6.18 B 1), although incident-to services in the office setting are still allowed.
CMS’s Final Rule uses the term facility, which would be place of service (POS) nos. 19, 21, or 22. Off-campus outpatient hospitals, inpatient hospitals, and outpatient hospitals would all be qualified POSs for this discussion. The answer to the question, “What was Medicare thinking?” lies in the defined work of the provider.
If you read the 2022 rules on shared and/or split visits, (30.6.18 B 3), it states, “For all split (or shared) visits, one of the practitioners must have face-to-face (in-person) contact with the patient, but it does not necessarily have to be the physician, nor the practitioner who performs the substantive portion and bills for the visit. The substantive portion can be entirely with or without direct patient contact, and is determined by the proportion of total time, not whether the time involves patient contact.”
Well, what does that mean exactly? There are face-to-face portions of the visit, because remember, we are still under 1995/1997 rules for hospital/facility services, but these new rules imply that if the physician (who is legally responsible for the patient) performed the “substantive portion” of the visit, or had the greater time documented, even if they were not present with the patient, they could still bill for the visit! Why is this okay? I could see a physician completing the MDM (medical decision-making) in its entirety via non-face to face services, and still being able to bill the hospital visit, when in fact the nurse practitioner (NP) actually saw the patient bedside and performed the history and exam.
The Substantive Portion
This definition is what does not make sense to the healthcare professional trying to understand Medicare’s thought process here. Regardless of who submits the claim, isn’t the physician responsible for their patient?
One of the entries in the Final Rule seems to mix up the 2021 office and other outpatient rules with hospital E&M documentation guidelines. This section says, “Given recent changes in the CPT E&M Guidelines, HPI and physical exam (PE) are no longer necessarily included in all E&M visits.” That is not accurate for hospital coding and reporting. As an auditor, I can say that the HPI and PE are key components of the record.
What CMS was trying to do, in my opinion, is get more nonphysician practitioner (NPP) claims reported, so their payment would be the 85 percent of the allowable instead of the 100 percent afforded to physicians. But with these new rules, the time can be manipulated in ways, such that a physician would never have to step inside a facility and still be able to bill for a shared visit, with the NPP doing the essential work such as the face-to-face assessment and planning for the patient. If they are sick enough to be in the hospital, shouldn’t there be a physician face to face with them? What if this hospital stay was ever questioned, under a deposition? What physician would want to go in front of a payor attorney and say they did not see the patient personally, but billed for the service because they were technically allowed to?
Documentation of Shared or Split Visits
If billing split visits, the documentation must identify the two individuals who performed the service. CMS states that the record must also indicate that “the individual who performed the substantive portion (and therefore, bills the visit) must sign and date the medical record.”
Another example of “what was Medicare thinking?” has to do with telehealth services. From the beginning of the pandemic, under the public health emergency (PHE), there was concern for obtaining consent in the record for a virtual visit, since the patient may have a share of cost for a visit they are not face-to-face for.
Well, if you circle back to the CMS FFS COVID FAQ sheet, Page 85, Question (33), which allows for flexibility under the CARES Act 1135 waivers:
Question: “Is beneficiary consent required for virtual check-ins, e-visits, audio-video telehealth visits, and/or telephone-only E&M telehealth visits?” The response is very confusing to the healthcare professional trying to apply the rules.
Answer: “Beneficiary consent to receive virtual check-ins and e-visits is required, although it may be obtained once annually, and during the PHE for the COVID-19 pandemic, consent may be obtained at the same time the service is furnished. Similar to services furnished in person, the patient’s consent is not required to be noted on the medical record for telehealth services furnished using interactive audio-video technology. The audio-only phone visits also do not require the patient’s consent to be noted in the medical record.”
So, my question to Medicare is, if the consent is not required to be in the medical record, but it is required, where would you like the provider to put it? I’ll give you my best-practices professional opinion. Put it in the medical record, and make sure you have someone responsible for updating it annually. If you are audited (and there are now nine audits on the OIG watch list for Part B telehealth services under the PHE), you need to support the rules.
Programming Note: To hear more on what was Medicare thinking, tune in to Talk Ten Tuesdays today at 10 Eastern, when Terry Fletcher will provide more examples of these rules that will make you ask this question.