A Matter of Time: New CMS Proposal Presents Head-Scratching Issues

The PFS proposal also includes a signature requirement.

Last week, the Centers for Medicare & Medicaid Services (CMS) issued the proposed 2022 Physician Fee Schedule. It is merely a proposal, with the final rule to be adopted sometime in late October through early December. As we suspected, there is a proposal to incorporate shared visits into the federal regulations, and in this article I am going to focus on it. Historically, shared visits existed only in the manuals. In early May, CMS withdrew that language, because only items contained in a statute, regulation, or National Coverage Determination (NCD) are binding.

The proposal presents a revisionist history of the old manual provision. The deleted manual language, which was found at Medical Claims Processing Manual Chapter 12, Section 30.6.1, said that a shared visit was possible when the physician “provides any face-to-face portion of the E&M encounter with the patient.” The preamble to the proposed regulation implies that the old policy was that the physician had to provide a “substantive portion” of the visit. That is simply untrue. There was a discussion about “substantive portions,” but it appeared in 30.6.13, a section about nursing facility services, in a discussion about how shared visits are not covered. I went years without knowing that the discussion in 30.6.13 existed, and for good reason. If you are trying to find out how shared visits in the hospital work, and there is a section that defines “shared visits,” you would end your research after reading it. You wouldn’t continue to pore over the Manual looking for additional sections, and you certainly wouldn’t devote any time to reading a section discussing visits in skilled nursing facilities, particularly when that section opens by declaring that shared visits can’t be covered in that setting. 

Under the now-deleted Manual language, if the physician walked in and said, “how are you doing?” to the patient, thereby obtaining some history from the patient, it was appropriate for the physician to bill a shared visit. That is similar to the operation of the “incident to” policy. When billing “incident to,” when the physician and non-physician practitioner both see the patient on the same day, that is sufficient to allow the physician to bill. There is no expectation that the physician spend the most time with the patient.

However, the proposed regulation includes precisely that requirement; under the proposal, whoever records the most time on the visit will bill. This is a terrible idea. An experienced cardiologist can offer a ton of meaningful advice quite quickly. Wisdom and time are different. Under the proposal, if a physician has a 20-minute conversation with the patient and an NP, but then leaves the room, and the NP spends one additional one minute with the patient, the physician is not allowed to bill at all. Under the proposal, the total time of 41 minutes spent by the two professionals would be compensated as 21 minutes of NP time. That is not a fair result. The proposal would create a bizarre irony: the more complicated the patient, with the more time the two professionals devote, the more uncompensated care professionals are providing.

The proposal also contains an explicit requirement that the billing professional sign the entry. Historically, there has not been a signature requirement for Medicare encounters. In short, the proposal makes things much worse than they were before. Under a proposed rule you get time to comment, and comment we should. Just like Billy Joel, I don’t want to see you let a good thing slip away. Here’s good information from a man who’s made mistakes. Reach out to CMS and tell her about it. 

Programming Note: Listen to healthcare attorney David Glaser’s Risky Business segment Mondays on Monitor Mondays, 10 Eastern.