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In split/shared billing, the physician should contribute substantively to taking care of the patient and be permitted to bill for it, even if an NPP participates, too.

By Erica Remer, MD, FACEP, CCDS

Full disclosure: my comment to the Centers for Medicare & Medicaid Services (CMS) about the 2022 Physician Fee Schedule Proposed Rule was that they should make the billable element for split/shared billing either medical decision-making (MDM) or time, for 2022 and beyond. I have always asserted that we healthcare providers are paid for our cognitive effort and ability, which is expressed per the MDM.

The Final Rule (https://www.govinfo.gov/content/pkg/FR-2021-11-19/pdf/2021-23972.pdf) established a transition period of crediting the practitioner who performed either one of the key components in its entirety, or invested more than half of the total time. In 2023, they are transitioning to the use of only time.

I keep thinking back to my time in the emergency department, where we worked very closely and collaboratively with physician assistants (PAs). The PA would see the patient first, and then I went into each patient’s room, discussed their history, performed a medically appropriate physical examination, and formulated a differential diagnosis, assessment, and plan. Sometimes the PA would be in attendance when I saw the patient; sometimes we just discussed things after my evaluation. Often, since the PA had done some of the legwork, my history could be abbreviated, confirming key elements. I could focus my exam on the essential body systems.

If the non-physician practitioner (NPP) performed their preliminary medical decision-making independently, they would discuss it with me, and if I agreed, it would de facto become my MDM. If I disagreed or wanted something different done, it would be done my way, because I was the attending physician, and the patient was ultimately my responsibility. The bill would be generated under my name and number. Patients would get quite miffed if a colleague billed under their own name but had never seen the patient, and understandably so (in 2023, a face-to-face encounter is not mandatory for the billing provider).

CMS wants to allow the provider who performed the “substantive portion” of the visit to bill at their level (i.e., 100 percent for MD/DO, 85 percent for NPP). I consulted Merriam-Webster for the definition of “substantive.” The entry that seems to be most apropos is “belonging to the essence or intrinsic nature of the substance, as distinguished from something that is accidental or qualifying; essential.”

But is all time spent working on a patient substantive and equal? Is time spent on hold waiting to speak to a humanoid to get pre-authorization or time spent scrolling through digital data to locate the crucial result the same as time spent explaining the results of a test or discharge instructions to the patient and family? Is waiting for the office staff to get the consultant out of a patient room and onto the phone as substantive as the time spent discussing the case with him?

I read, click, and think very quickly. If I am able to collect the information I need to make good decisions and provide excellent care to my patient more expeditiously than my NPP, should I be penalized for being time-efficient?

“Qualifying activities” are listed by CMS as the following:

  • Preparation (e.g., reviewing labs);
  • Obtaining and/or reviewing separately obtained history;
  • Performing a medically appropriate physical examination;
  • Counseling and/or educating patient/family/caregiver;
  • Ordering medications, tests, or procedures;
  • Referring and communicating with other healthcare professionals (when not separately reported);
  • Documenting clinical information in the electronic or other health record;
  • Independently interpreting results (not separately reported) and communicating results to the patient/family/caregiver; and
  • Care coordination.

It’s funny – which of these activities is actually medical decision-making? My tagline is “putting mentation back into documentation.” Where is arguably the most important time spent thinking registered?

The Final Rule notes that the new split/shared rule is applicable to emergency department (ED) visits, too. Commenters suggested including MDM explicitly as a qualifying element for ED visits, although CMS rejected this. In an office visit or a subsequent hospital visit, there are typical times that can be used to determine which level of service (LOS) to pick, according to total time. Then, the provider who performed more than half of the split/shared visit will get paid at that LOS at their allowable percentage.

Emergency medicine visits are not time-based (unless for critical care). You can see a patient having an acute myocardial infarction and have them whisked off to the cath lab in a jiffy (my personal best was nine minutes). That duration of time wouldn’t even justify the lowest LOS in any code set. If there are no suggested or typical times in the emergency department, how do you determine the LOS according to total time?

Director of Provider Compliance Sally Streiber shared with me that her facility’s process for determining ED LOS by time is going to be level-setting according to the traditional key components, and then determining which clinician had spent more than 50 percent of the time managing the patient. This seems logical to me.

Someone else asked how the government is going to know how much time is spent in non-face-to-face activities. The answer is that practitioners need to provide that detail, but practically speaking, it may be difficult to audit. I would try to be near accurate, if not exact. The physician is not likely to clock in a precise accounting of their own time, let alone the NPPs.

I also think that the word “substantive” may be misplaced. Is the question whether the portion of the total time is substantive (i.e., more than 50 percent), or is the question who had the majority of the substantive time invested in that patient’s care? Providers should be entitled to determine what constitute substantive activities and time.

I support preventing fraud, waste, and abuse. Providers should be providing medically necessary services and should be getting paid appropriately for them. In split/shared billing, the physician should contribute substantively to taking care of the patient and be permitted to bill for it, even if an NPP participates, too.

Programming Note:

Listen to Dr. Remer report this story live today when she cohosts Talk Ten Tuesdays with Chuck Buck at 10 Eastern.


Erica E. Remer, MD, CCDS

Erica Remer, MD, FACEP, CCDS, has a unique perspective as a practicing emergency physician for 25 years, with extensive coding, CDI, and ICD-10 expertise. As physician advisor for University Hospitals Health System in Cleveland, Ohio for four years, she trained 2,700 providers in ICD-10, closed hundreds of queries, fought numerous DRG clinical determination and medical necessity denials, and educated CDI specialists and healthcare providers with engaging, case-based presentations. She transitioned to independent consulting in July 2016. Dr. Remer is a member of the ICD10monitor editorial board and is the co-host on the popular Talk Ten Tuesdays weekly, live Internet radio broadcasts.

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