Reviewing the 2022 Physician Fee Schedule Proposed Rule: Part II

It is critical to submit comments on proposed rule on critical care.

As I said last week, the Physician Fee Schedule Proposed Rule for the 2022 calendar year (CY) came out July 23, and the Centers for Medicare & Medicaid Services (CMS) is soliciting comments by Sept. 13 (https://www.govinfo.gov/content/pkg/FR-2021-07-23/pdf/2021-14973.pdf).

I’m going to review the proposed changes to critical care billing in today’s piece. In my opinion, these changes would more accurately reflect and compensate providers for critical care services being furnished.

On page 39208, CMS offers the definition of critical care as “the direct delivery by a physician or other qualified healthcare professional of medical care for a critically ill/injured patient in which there is acute impairment of one or more vital organ systems, such that there is a probability of imminent or life-threatening deterioration of the patient’s condition.” They acknowledge that critical care requires high-complexity medical decision-making (MDM). It is typically furnished in critical care areas, like the intensive care unit or the emergency department, and requires the full attention of the caregiver. Essentially, CMS plans to adopt the Current Procedural Terminology (CPT) language and guidance, including which services are bundled into critical care services.

The incremental billing practice is explained in the proposed rule, and the fact that time need not be continuous is explained. 99291 is the CPT code for the first 30-74 minutes of critical care time (CCT) on a given day, and then 99292 is billed in increments of additional 30-minute blocks. The fact that CCT is cumulative is the reason the precise number of minutes being claimed is imperative, not a range or “greater than.”

CMS is soliciting comments about how to report time when contiguous services extend beyond midnight to the following calendar day. I am in a quandary as to how this would best be accomplished. Should the increment of time in a contiguous episode of CCT be completed and tallied on the initial date, and then the clock restart on the next day if critical care services are provided again, with a new allocation of 99291? Providers do not close out their billing at the stroke of midnight, so they could hold back the total time to be applied to the first date in question. If you have a brilliant idea on how to address this, submit your comment to CMS.

CMS is trying to address the scenario in which two or more providers from the same or different groups are furnishing services, and how to credit both practitioners for their time. If concurrent care is medically necessary and not duplicative, they are proposing to allow billing for the services of each practitioner. This is welcome, because historically, only one practitioner could be credited with CCT for any given moment in time. In a trauma or code situation, there may be multiple providers furnishing critical care concurrently, but only one of them is permitted to claim CCT presently.

CMS is proposing to allow for aggregation of time of providers in the same specialty and group to meet the threshold of initial critical care service, 99291. As it stands today, a single provider must cross the threshold of 30 minutes to bill that first portion of CCT, and then all subsequent cumulative time is added to determine how many increments of 99292 were provided over the 24-hour calendar day by the same provider or group. However, CMS needs to correct the calculated cumulative time threshold for 99292 to 104 minutes; they added 74 minutes to 30 minutes and arrived erroneously at 114 minutes.

I am ecstatic to see their recognition that “the practice of medicine has evolved toward a more team-based approach to care, and greater integration in the practice of physicians and NPPs,” and that CMS is proposing to allow for split/shared billing of CCT (which, again, is not currently allowed). The time calculus parallels the comments I made last week regarding the minimum criterion for substantive portion of time for any split/shared billing. I think 50 percent is excessive, and that “at least 25 percent” of physician time is more realistic. If the physician is the captain of the ship for the lawyers, they can be the responsible party for reimbursement, too.

CMS is asking for comments as to whether it is appropriate to bill for an evaluation & management (E&M) visit on the same calendar date as when critical care is delivered by the same provider. I wonder if applying the criteria of medically necessary and non-duplicative services could address this issue. I also question how common this scenario is nowadays, with hospitalists and intensivists abounding. Patients could be seen earlier, while non-critical, and then decompensate. The second encounter would warrant CCT. I think if the same individual saw the patient both times, they could be entitled to both E&M and CCT compensation.

The final element of critical care relates to critical care services in the setting of a global surgical period. I think it is fair to limit the surgeon who performs the procedure and is being paid with that global fee if the critical condition is related to the surgery, but other providers should be allowed to bill critical care services if the services are medically necessary and nonduplicative.

My favorite part of the proposed rule is the discussion of documentation requirements! The key elements would be total time, assertion that the services were medically reasonable and necessary to treat a critical condition, and sufficient documentation that the role played could be established. A good attestation and a strong story would accomplish this.

Take advantage of the opportunity to shape the rule. Submit your comments before the deadline here: (https://www.regulations.gov/document/CMS-2021-0119-0053).

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