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'So much terrible.' A health care attorney pans CMS' proposed split/shared policy

We’ve seen a lot of responses to proposed Medicare policies, but rarely one this swift and scathing:
I HATE it. Using time is terrible. And the explicit signature requirement is terrible. So much terrible.
That’s what David Glaser, shareholder in Fredrikson & Byron’s Health Law Group, Minneapolis, wrote about the proposed split/shared policy a few hours after CMS released the proposed 2022 Medicare physician fee schedule.
Part B News readers will recognize Glaser’s name from an article about the recent withdrawal of guidelines for split/shared — and critical care — visits (PBN 6/17/2021, subscription required).
In his note about the proposed rule, Glaser was referring to CMS’ proposed plan to model split/shared visits after time-based office visits and with and added twist: Visits would be billed under the name and NPI of the provider who spends the most time on the visit. That is, if the physician spent the most time on the visit, the physician would bill the service. If a qualified health professional, such as a nurse practitioner (NP), spent the most time, then the NP would bill the service. In addition, the billing provider would have to sign and date the medical record.
When asked to elaborate on his initial reaction, Glaser readily did so. Here is his response in full:
The discussion of shared visits portrays a revisionist history of how shared visits were covered. The Manual said that a shared visit was possible if the physician “provides any face-to-face portion of the E/M encounter with the patient.” There was no discussion about a “substantive portion” of the visit. (The discussion about “substantive portions” appeared in 30.6.13, a section about nursing facility services, in a discussion about how shared visits are not covered. I went years without knowing that the text in 30.6.13 existed. If you are trying to find out what shared visits are, you look at the definition of “shared visits,” not at a discussion about nursing facility services that explains how shared visits are not covered in that setting.)
Under the Manual language defining shared visits, if the physician walked in and said, “How are you doing?” to the patient, thereby obtaining history elements, it was appropriate to bill a shared visit. That is totally consistent with the way the incident to rules work; there is no “minimum threshold” the supervising physician must meet to bill.
Time is bad way to determine how important someone’s work is. An experienced cardiologist can offer a ton of meaningful advice quite quickly. Wisdom and time are different. The proposal sets up a situation where you might have a physician have a 20-minute conversation with an NP, but if the NP spends an additional 1 minute with the patient, the physician isn’t allowed to bill at ALL for the service the physician provided, and the total time of 41 minutes between the two professionals is compensated as 21 minutes of NP time. That is ill-conceived. Oddly, the more complicated patient, and the more time two professionals devote, the more “free” work the professionals are providing.
As for the proposed requirement that a professional must sign and date the note, there has historically not been a requirement to sign notes, nor should there be. A signature proves absolutely nothing. It doesn’t prove presence; you can sign it later. It doesn’t prove you have read something; who hasn’t signed a car rental agreement without reading it? It is a purely bureaucratic requirement, and a new one.
In fact, when the E/M Documentation Guidelines were issued in 1995, the Q&A issued by then HCFA/now CMS said that it wasn’t necessary to sign the chart. The only expectation was that one would be able to identify who provided the service. That is far more logical.
Whatever your opinion of the proposed split/shared rule, if you want to help shape the final policy — or any other part of the proposed rule — you have until Sept. 13, 5 p.m., ET, to submit comments to CMS. Be sure to read upcoming issues of PBN for more details on the proposed rule.
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