2022 Physician Fee Schedule Final Rule and Split/Shared Time

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Original story posted on: November 15, 2021

The changes mark a fundamental shift to a regulatory provision that could have drastic financial ramifications for providers.

The 2022 Medicare Physician Fee Schedule (MPFS) Final Rule was recently issued (https://public-inspection.federalregister.gov/2021-23972.pdf). When it was first proposed, I recommended that folks slog through it and comment. I am concerned that the Final Rule’s provision regarding split/shared time is going to be problematic for physicians and their bottom lines.

In many environments where incident-to billing is not permitted (that is, places of service other than a doctor’s office), advanced practitioner professionals (a.k.a. advanced practice providers, or APPs) and physicians are permitted to split, or share, a visit. The criteria for this had always been a bit loosey-goosey. The APP needed to be expensed to the physician, and the physician had to have a face-to-face encounter. A while ago, the Centers for Medicare & Medicaid Services (CMS) started referring to the physician having to provide a “substantive portion” of the evaluation and management (E&M) visit, but they left this up to interpretation. Some elements of the history, physical, or medical decision-making (MDM) also needed to be performed and documented by the physician.

The 2022 Final Rule is fundamentally changing split/shared visits. For 2022, the “substantive portion” will be defined as performing at least one of the three key components, or exceeding the threshold of more than half of the total time. However, in 2023, the sole criterion will be greater than half of the total time.

I think CMS missed the mark on this. They should have allowed the provider who attests to being responsible for the MDM to be the primary biller. The 2021 Guidelines for Office Visits established the validity of using MDM or time as the basis for choosing a level of service. I think this would easily translate to split/shared time, too.

The physician will no longer be mandated to have face-to-face contact, even if the visit is billed under them. This seems odd to me. If a patient receives a bill under a provider with whom they have not made face-to-face contact during the encounter, there will likely be significant dissatisfaction. If CMS is trying to eliminate physician billing for a poking-their-head-in-and-saying-hi encounter, wouldn’t it be even more untoward to not even have greeted the patient? As a patient, I would be skeptical that the physician had invested the lion’s share of time managing my case without ever engaging with me.

The provider who contributes the majority of time (more than 50 percent) will be the person who is entitled to bill for the service. Services that count towards time will include:

  • Preparing to see the patient (such as reviewing tests);
  • Obtaining or reviewing separately obtained history;
  • Performing a medically appropriate physical examination;
  • Counseling and educating the patient and companions;
  • Ordering medications, tests, or procedures;
  • Referring and communicating with other healthcare professionals;
  • Creating documentation;
  • Independently interpreting results (not separately reported) and communicating results to the patient; and
  • Handling not separately reported and billed care coordination.

APPs used to be considered “physician extenders.” They also have been referred to as non-physician practitioners (NPPs) and mid-level providers (MLPs). They comprise nurse practitioners (NPs) and physician assistants (PAs). NPs can practice independently, whereas PAs typically practice under the supervision of or in collaboration with a physician. PAs are in the process of rebranding their title to physician associates. APPs have a considerably shorter training period than a residency, and potentially a fellowship-trained physician.

I would like to think that this gives physicians a broader knowledge base and understanding of clinical medicine. That highly trained individual is usually considered captain of the ship. They bear the ultimate responsibility and culpability for the patient’s medical care.

How far can they extend my reach (as a physician) if I have to do most of the work myself anyway? When working as a team, practically speaking, it would be highly unusual for a physician to perform the majority of tasks required to care for a patient. It makes sense for physician extenders to offload the less cognitive but often more time-consuming, processes like making referrals, inputting orders, and crafting the documentation. In my opinion, the most critical function of the physician is not a time-based activity; their value is in doing the medical decision-making and determining the appropriate plan of care.

Besides it being very challenging to track exact physician time expended and comparing it with the APP to determine who should be credited with caring for the patient, the deck is being stacked against the physician. One could have several physician extenders employed, increasing capacity to care for patients. If you aren’t going to attribute the RVUs (relative value units) to the physician, you are disincentivizing them to see more patients. If I were to spend my entire day seeing patients whose care is then being credited to other individuals, I might appear as though I am not producing, to the administration. Why bother, then?! Patients may be very dissatisfied if their physicians’ solution is to stop engaging with them and start relinquishing their care to the APPs.

It is good that CMS is planning on allowing for split/shared status for critical care time, prolonged time, and skilled nursing facility (SNF) visits, which do not mandate performance in their entirety by a physician. My opinion is that it would be appropriate to place a more than 50-percent time requirement for any time-based billing. That only makes sense. But if key components are the derivation of the level of service, basing the substantive portion on time doesn’t make sense.

The reality is that the goal and the outcome of this new system will be to decrease CMS’s costs. They are salivating at the thought of reducing payments of all split/shared patients to 85 percent. I think the unintended consequence is going to be driving a wedge between physicians and their APPs – and physicians and their patients. Bad call, CMS.

However, I like the critical care time (CCT) changes in the Final Rule:

  • My interpretation is that if CCT crosses a midnight, it is accrued until the service is no longer continuous. If you see a patient from 11 p.m. to 1:30 a.m., tend to another patient for a few hours, and then return to the first patient for an hour, the first day would get a 99291 plus three units of 99292. Then, you would start over again for Day 2 with 99291.
  • Providers who are managing multiple conditions on the same patient concurrently can now claim CCT, provided that their services are medically necessary and non-duplicative.
  • Practitioners in the same group and specialty can aggregate their time to cross the threshold of 99291 (i.e., 30 minutes), provided that the criteria for claiming CCT are met.
  • CCT will be eligible for split/shared visits, and the billing will go to the provider who is credited with more than 50 percent of the time spent.
  • If a patient has a same-day E&M visit and critical care visit, and both services are medically necessary, separate, and distinct, without duplicative elements, both may be billed.
  • CCT may be paid in addition to a procedure with a global surgical period, as long as the critical care service is unrelated to the procedure. If related, CCT may be invoked if the patient is critically ill, requires the full attention of the physician, and the critical care is above and beyond the scope of the general surgical procedure performed. CMS reserves the right to eventually consider discounting one of the services.
  • CMS defined the documentation that is necessary to get credit for CCT: total time (not a range or threshold met), the services furnished, evidence that the care was medically reasonable and necessary, and the role that each practitioner played are required.

In my opinion, CMS got critical care time right.

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

Erica E. Remer, MD, CCDS

Erica Remer, MD, CCDS has a unique perspective as a practicing emergency physician for 25 years, with extensive coding, CDI, and ICD-10 expertise. She was a physician advisor of a large multi-hospital system for four years before transitioning to independent consulting in July 2016. Her passion is educating CDI specialists, coders, and healthcare providers with engaging, case-based presentations on documentation, CDI, and denials management topics. She has written numerous articles and serves as the co-host of Talk Ten Tuesdays, a weekly national podcast. Dr. Remer is a member of the ICD10monitor editorial board, a former member of the ACDIS Advisory Board, and the board of directors of the American College of Physician Advisors.

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