Reviewing the 2022 Physician Fee Schedule Proposed Rule

Is split/shared billing really all about time?

During my career as an emergency physician, I was the department expert in documentation and billing. In those days, billing meant the professional fee (pro fee), the evaluation and management (E&M) level of service, which is how providers are reimbursed. I later expanded my interests to clinical documentation integrity (CDI) and the Diagnosis-Related Group (DRG) facility fee, when I became a physician advisor, but I always believed that my knowledge and understanding of the pro fee was valuable. Although I don’t subscribe to the “what’s in it for me?” concept, I sometimes incorporate pro fee education and emphasis to engage providers.

The 2022 Physician Fee Schedule Proposed Rule (the Centers for Medicare & Medicaid Services’ or CMS’s, abbreviation: 2022 PFS PR) came out July 23 (access it online at: https://www.govinfo.gov/content/pkg/FR-2021-07-23/pdf/2021-14973.pdf), and they are soliciting comments submitted by Sept. 13, 2021. I encourage providers and practice administrators to read as much of the 804 pages as they can, and to make comments. I focused on the sections relating to split/shared (S/S) billing and critical care time. I will provide you with my perspective, but I encourage your providers to do their own review, and to contribute their comments independently. Today I will discuss the S/S aspect, and next week, I will address critical care time.

A S/S visit is going to be defined as an E&M visit in the facility setting: a service performed conjointly between a physician and a nonphysician practitioner (NPP) from the same group. CMS’s policy had been withdrawn from the Medicare Claims Policy Manual, with the intent to address the issue with rule-making (i.e., this rule).

2022 PFS PR notes that in the previous rule, the CPT® E&M Guidelines for the new office/outpatient E&M visit codes were adopted. The 2022 PFS PR specifies on p. 39204, under II.F.1.b., that S/S visits “are furnished in a facility setting by a physician and an NPP in the same group, where the facility setting is defined as an institutional setting in which payment for services and supplies furnished incident to a physician or practitioner’s professional services is prohibited under our regulation at § 410.26(b)(1).” In other words, if you can bill according to incident-to, you can’t do a S/S visit. The doctor’s office is the place of service (POS) where incident-to is typically utilized.

Assigning E&M levels of service typically involved (and still does, in many POS) meeting criteria for component-based billing or reaching a threshold of time where more than half of it was spent doing counseling and/or coordination of care. The three main components are history, physical, and medical decision-making (MDM). The higher levels of service mandate more detailed/thorough documentation of the elements comprising the components (e.g., more body systems to be examined, more systems addressed in the review of systems, etc.).

In January 2021, the 2021 CPT® E&M Guidelines transitioned from component or counseling/coordination of care to straight time-based or solely MDM-based care. This applies only to office and outpatient visits, not inpatient, observation, or skilled nursing facility (SNF) care. Additionally, nursing facility and SNF care are not currently eligible to be performed as S/S services, although the 2022 PFS PR proposes to allow S/S billing for NF/SNF visits, as well as critical care.

NPPs are trained and licensed healthcare providers who historically practiced either in collaboration with or under the supervision of a physician, although there is a movement currently underway to expand their independent practice. Physicians and NPPs frequently work in concert to care for patients, often in a team approach. If the physician and NPP are performing a S/S service, the physician is considered the captain of the ship, and is ultimately held responsible medicolegally for the patient’s care and outcome.

The proposed rule is essentially asserting that, since the changes in the 2021 E&M Guidelines (for office/outpatient visits) eliminated the three-key-component valuation of the visit, and “MDM is not necessarily quantifiable and can depend on patient characteristics (for example, risk),” time is a more precise measure of substantive portion of the S/S visit. There are several flaws in this thinking:

• Visits other than office/outpatient visits still utilize the three-key-component level-of-service criteria.
• High-risk patients deserve the highest levels of knowledge, experience, and training, i.e., physician care, to perform highest-level MDM. High-complexity MDM does not necessarily take more time to achieve (e.g., recognizing an acute myocardial infarction and arranging transfer for emergent catheterization may not be a lengthy process, but would still meet high-complexity MDM) than moderate or even low MDM.
• If time were the only way to judge level of service, then the revision would have been to use only time, as opposed to MDM or
• Physicians who are ultimately responsible for patient care would assert that MDM is always attributable to them. If an NPP discusses a case with me, I, as the physician, would ensure that the assessment and plan are aligned with my intentions. My judgment is paramount.

Let’s address time. Any healthcare provider would affirm that there are tasks necessary in clinical care that are time-consuming, but do not require a physician’s time. Getting pre-authorization, tracking down the results of tests, explaining minutiae to patients and family members, doing preliminary documentation, and arranging for oxygen or other durable medical equipment are examples of activities that are imperative to providing excellent patient care, but need not be done by a physician, per se. It is most efficient to have individuals working at the top of their license, and while a doctor can and will do tasks that other less highly educated/trained personnel can do, the ancillary personnel cannot reciprocate and perform physician-only actions.

In the team model, there is likely more time needed for those other necessary tasks than time required for the physician to personally perform the role that only an individual at the top of a physician license could do. Mandating that to bill at the physician’s rate, the physician needs to exceed 50 percent of the qualifying time, essentially destines the majority of cases to be billed at the NPP rate. Let’s be realistic; this is likely CMS’s goal. The danger is that physicians may relinquish care of their patients to their NPPs if the deck is stacked against them – why not, if they will never be able to bill at the physician rate?

CMS is not really paying for the time the provider spends with the patient. They are paying for years of medical school, residency, possibly fellowship, and practice of a master clinician. People sometimes are taken aback by the cost of a tradesman’s bill. It can take 10 minutes to troubleshoot an issue, but the bill could be higher than a fraction of what the hourly rate would have been. We are not only paying for their time and materials. We are paying for their knowledge, expertise, experience, and availability. A reliable, competent, honest electrician or plumber is well worth their fee. If they have an apprentice, helper, or employee, don’t we still pay the licensed tradesman’s rate, if they work in concert? Do we expect them to discount the minutes that the helper wielded the screwdriver?

It is not unreasonable for CMS to desire avoiding paying the physician for brief or minor interactions, wherein the physician’s contribution to the MDM is not significant or valid. If the physician is just “poking their head into the room,” is it worth the additional 15 percent?

The question to me is this: is there medical necessity for a physician at the top of their license to contribute, be involved, or intervene? Have they made a substantive contribution to the care of the patient?

Basing it on time is expedient – it is much easier to quantify. I would offer that “at least 25 percent of the total time” would be more apt than 50 percent. Physicians are really paid for their cognitive process, not for the execution of the plan, large apportions of which could be delegated. An attestation could be made specifying that “the total time spent by physician and NPP was X minutes, at least 25 percent contributed by the physician, to include (listing of qualifying elements).”

If I were revising the S/S system, I would mandate that there be medical necessity for a physician’s input, that the MDM must have been discussed with and agreed upon by the physician, and that “at least 25 percent of time was provided by the physician.” The work product of the combined physician/NPP team should be attributed to the physician. The goal is to provide excellent patient care, not to quibble over who made what phone call or typed what when. If the physician is the captain of the ship, and ultimately responsible medicolegally for the patient’s care, they should also be entitled to bill for and be reimbursed for the service. Conversely, the physician may decide that the case is straightforward and doesn’t necessitate their involvement, so they can turn their attention to other cases that are more exigent – and leave the care and billing at 85 percent to the NPP.

This would avoid frivolous billing for “popping their head in,” and require the physician to do substantive work. If the physician does not see the patient that calendar day, it is NPP-billed. If the physician only has a social interaction with the patient, it is NPP-billed. But in the situation when the physician and the NPP are working together as a team to take care of a patient, the team leader (the physician) should be entitled to accrue the credit (or accept the blame!).

I agree with not permitting double-dipping overlapping time (distinct time calculation). Time should be calculated on physician time when physician and NPP are both present, and the time that the NPP contributes solo should be added to that physician time to arrive at a total time.

The proposed rule is suggesting that a modifier be created so S/S billing can be identified and traced. This seems reasonable. Since they are proposing the time threshold, their methodology would be that the modifier would be applied to whomever performed more than half of the time and performed the billing. No billing for partial services is allowable for S/S.

The specific comments I am going to be submitting to CMS regarding S/S E&M visits will be:

• If there is medical necessity for a split/shared visit, the physician must determine the MDM and attest to such.
• I disagree with the use of more than 50 percent as the threshold to determine physician billing for a S/S visit. There are many tasks that do not require physician-level time, which nonetheless are necessary to take excellent care of the patient. Demanding that the physician perform these duties to meet the time criterion or downgrading the visit to NPP-billing at 85 percent if the physician does not perform those tasks that are not at the top of their license is imprudent. I would support a threshold of “at least 25 percent of substantive time” of the combined physician-NPP time if a formal criterion must be established. “Substantive” can be defined so as not to include “popping their head in” or socializing.
• I support not permitting credit for overlapping time spent in conferring or attending to the patient. This time should only be attributed to the physician, unless the expressed purpose is to teach the NPP.
• I agree with a S/S modifier to identify S/S visits.
• I support allowing S/S billing for NF/SNF and critical care.

If physicians who do S/S billing routinely don’t act now, I predict they are going to find their group’s revenues significantly reduced if this proposed rule becomes finalized. Not only will their revenue decrease, but their personal relative value units (RVUs) will suffer as well. It is imperative that people who are going to be affected by proposed rule submit comments (https://www.regulations.gov/document/CMS-2021-0119-0053). If you are not willing to be part of the solution, you may be saddled with the problem.

Next week, I will go over my opinions on critical care time.

Programming Note: Listen to Dr. Erica Remer when she co-hosts Talk Ten Tuesdays with Chuck Buck, Tuesdays at 10 Eastern.