The 2023 Physician Fee Schedule Proposed Rule: All E&M Is Going to MDM or Time

Editor’s Note: The unofficial, unpublished FY 2023 Physician Fee Schedule Proposed Rule (CMS-1770-P) was posted on July 7, 2022. Comments will be taken at www.regulations.gov until Sept. 6, 2022.

A major revision of the Current Procedural Terminology (CPT) Evaluation and Management (E&M) Guidelines for Office and Outpatient Visits (O/O Visits), Split/Shared Visits, and Critical Care Time billing was implemented Jan. 1, 2021. You would think that all office-based providers would have been made aware of this and changed their documentation accordingly, but I hear through the grapevine that there is still a lot of work to be done. The proposed rule informs us that these major changes are going to spread to the hospital, skilled nursing facility, and home visits.

The revisions have been pushed out by the American Medical Association (AMA). Also, the Centers for Medicare and Medicaid Services (CMS) is going to adopt most of the changes, although there are some situations where they are deviating and there is opportunity to make comments to try to affect this.

You should view the specific guidelines as laid out by the AMA at http://www.ama-assn.org/cpt-evaluation-management. The changes for Other E&M are similar to those imposed on O/O visits. The only component to determine level of service is going to be medical decision-making (MDM). The alternative will be to bill according to time. Emergency visits are the exception; time is not a factor for emergency department billing.

Here are some high-level points from the newly revised CPT E&M guidelines:

• The definition of new and established has not changed.
• Services reported separately cannot be double dipped in Medical Decision Making (MDM). For example, if a provider bills for an echocardiogram, they may (and should) document the results in their note, but they can’t take credit for the echo in their MDM calculation for the E&M visit.
• There are no longer mandatory elements of the history or physical examination (PE).
  • History and PE should be done as “medically appropriate.” I think Social History (SH – do you smoke, drink, or do drugs?) is always relevant and appropriate. Mandatory review of systems is eliminated.
  • H&P may not be required for billing, but they are still critical to determining medical necessity of actions and very important medicolegally.
• MDM
  • There are four levels of MDM: straightforward, low, moderate, and high.
  • Three elements are assessed as to level of complexity, and the level is determined by best two out of three.
    • Number and complexity of problem/s that are addressed during the encounter
      • Problems have specific definitions laid out (e.g., stable/exacerbated, chronic/acute, complicated/uncomplicated).
      • Problem must be addressed to be counted regardless of how you want to determine that (e.g., MEAT, TAMPER). Not just in a problem list. Not delegated to the consultant for complete management.
      • It isn’t only the final diagnosis; the presenting signs/symptoms may drive this element.
    • Amount and/or complexity of data to be reviewed and analyzed
      • Although they get the point at time of ordering, the review and analysis are expected and inherent to the order.
      • Obtaining additional or corroborative history from an independent source increases complexity.
      • This is a good time to reinforce that data should be interpreted, not just copy and pasted, not just “The X-ray looked good to me.” Don’t need a formal report but need “independent interpretation” to accrue these points.
    • Risk of complications and/or morbidity or mortality of patient management
      • If management options were considered and discussed but not undertaken, this increases risk, but only if your provider documents the process.
      • Social Determinants of Health (SDoH) are considered moderate risk if they “significantly limit diagnosis or treatment,” so your providers should consider creating a macro explicitly saying this.
      • Drug therapy requiring intensive monitoring for toxicity is high risk. This is not monitoring for therapeutic efficacy but assessing for toxic adverse effects.
      • Parenteral controlled substances has been added to high risk. This was not originally found in the Office/Outpatient matrix. This is a biggie!

Impress upon your providers that now that MDM is the sole component by which they are being paid, they want their ED course, hospital course, assessment and plan section to be robust. They need to think in ink. Why are they ordering that test? What is their concern? Why is the patient at risk? How are they addressing that comorbidity? How are they managing the medications?

The alternative to MDM is time-based billing (except for ED visits). The time need not all be face-to-face. It is total time, not “>50 percent spent in counseling and/or coordination of care.” The time is by calendar day except in the situation where a continuous service overruns a midnight. If a continuous service spans two calendar dates (e.g., patient encounter is begun prior to midnight and concludes the next calendar day), it is considered a single service and all the time is applied to the reported date of service.

The activities which count include preparation; history and physical exam time (they still count for something!); discussing, counseling, educating patient and others; ordering medically appropriate tests and treatments; independent interpretation; referral and communication with other healthcare professionals; care coordination. A caveat is that any of these activities cannot be being separately reported and billed (they can’t double dip!).

Inpatient and outpatient status for observation services (OBS) have had their code sets merged. Hospital and Observation initial care is going to be reported with 99221-99223, and subsequent care will be 99231-99233. The discharge services are also going to be combined.

The biggest issue I had with the proposed rule has to do with prolonged time. Each service has a duration of time which must be met or exceeded to bill on total time. If a provider has maxed out the level (e.g., the highest level in that code set), and they spend at least 15 minutes more than the maximum, they can add a prolonged total time code. CPT is making one code; CMS is proposing a different code supposedly to reduce “administrative complexity.” Then CMS seems to use completely different times which perplexed me. I think you should read this for yourself and see if it makes sense to you. If so, maybe you can explain it to me!

CMS is also giving us another shot at commenting on split/shared which they have postponed implementation of. I have discussed this at length previously in ICD10Monitor. I think using history or physical as a factor to establish the substantive portion of a split/shared visit makes no sense if they aren’t even mandatory elements. My opinion is that whoever does the MDM should be entitled to bill. This will almost certainly be the physician in a split/shared scenario.

I implore you all to read the Proposed Rule if it relates to your practice and your providers and make your own comments. There are major changes coming to professional billing, and I think they will be good. We have the ability to give CMS input. Seize that opportunity.

Programming note: Listen every Tuesday morning when Dr. Erica Remer cohosts Talk Ten Tuesdays with Chuck Buck at 10 Eastern.