Public Comments on the Rule Close September 6
In early July 2022, the Centers for Medicare & Medicaid Services (CMS) released the 2023 Proposed Rule, which addressed split (or shared) visits. A split visit is an evaluation and management (E/M) service performed jointly between a physician and an advanced practice provider (APP) and is billed under the physician’s National Provider Identifier (NPI) at 100% of the Medicare Physician Fee Schedule (MPFS), rather than 85% if it were billed under the APP’s NPI. To bill for a split visit, the following requirements must be satisfied:
- The physician and APP must be employed by the same group practice (i.e., same Tax ID), or the APP must be an expense to the physician practice through, for example, a lease arrangement.
- The service must be performed in a facility setting as opposed to an office setting (review the incident to requirements for an office setting).
- The visit requires a substantive portion to be performed by both the physician and APP.
CMS is providing a 60-day public comment period on the 2023 Proposed Rule, which closes on September 6, 2022. This PYA insight will provide more clarity on how split and shared visits are addressed in the 2023 Proposed Rule.
2022 CMS Policy
Before diving into the CMS 2023 Proposed Rule, it is important to mention the definition of a “substantive portion” was revised by CMS in calendar year (CY) 2022. CMS introduced a change that further defined a “substantive portion” as more than half of the total time of the visit, meaning the visit should be billed under the provider who performs more than 50% of the total time counted for the visit. Time relevant to split visits is defined in the 2022 Final Rule consistent with the 2021 E/M Guidelines and, notably, is not relevant to the 1995/1997 E/M guidelines. To allow for a transition period, CMS stated physicians could alternatively meet the level of one of the key components (history, exam, or medical decision-making [MDM]) to support selecting the physician, as opposed to the APP, as the billing provider. Prior to 2022, CMS defined the physician documentation requirement of a “substantive portion” as all or some portion of the history, exam, or MDM key components of an E/M service.
The changes finalized in the CY2022 Final Rule created significant internal process and revenue challenges for provider organizations. Effectively, more work and documentation from the physicians were expected for the same or less reimbursement. Fortunately, due to the feedback and comments from the public after the Final Rule was published, CMS is proposing a delay to the implementation of the revised definition of the substantive portion in the 2023 Proposed Rule until CY2024, to allow a smoother conversion.
Specifically, the Proposed Rule states:
We are amending § 415.140 by adding to paragraph (a) “and 2023” after the phrase “For visits other than critical care visits furnished in calendar year 2022.” Therefore, the proposed paragraph would specify, for visits other than critical care visits furnished in calendar years 2022 and 2023, substantive portion means one of the three key components (history, exam, or MDM) or more than half of the total time spent by the physician and NPP performing the split (or shared) visit.
However, in the newsroom post of the 2023 MPFS fact sheet, CMS defines a substantive portion of a visit by any of the following elements:
- Performing a physical exam
- Making a medical decision
- Spending time (more than half of the total time spent by the practitioner who bills the visit)
These two descriptions are inconsistent with each other and with the 2022 Final Rule. Again, the 2022 Final Rule stated the physician had to meet the level of one key component. This guidance does not state that, but it also does not clarify what it means. If CMS is saying physicians can return to pre-2022 requirements and document a portion of the history, exam, or MDM to meet the requirement of billing provider selection, that should be confirmed and clarified in Final Rule verbiage. Additionally, the industry would applaud that finalization. However, if CMS is, in fact, requiring one of the three key components be met for the physician to be selected as the billing provider, there is a conflict in the guidelines.
2023 E/M Guideline Changes
The dilemma with the substantive portion definition guidance provided for 2023—if the expectation is for the key component to be fully documented by the physician—is it does not align with the new 2023 E/M guideline requirements. Unlike the 1995/1997 E/M guidelines, the 2023 guidelines require only a medically appropriate history and/or examination. The extent of the history and exam is not an element in the selection of an E/M service in the inpatient setting. Therefore, the only key component with a defined level is the MDM. This creates confusion for providers trying to perform split visits compliantly, while also implementing the simplified 2023 E/M guidelines in their documentation practices.
It would be an additional administrative burden for providers to consider the 1995/1997 E/M guidelines when performing split visits in CY2023; therefore, it is important to get this clarified.
- Due to the conflicting guidance provided by CMS, we recommend organizations comment prior to the September 6 deadline to request this clarification and include their recommendations for a solution.
Additional Impact Considerations
Because the CY2022 change creates a significant time burden on the physician, it is expected that some visits previously performed as a split visit will be performed only by the APP and billed under the APP’s NPI number at 85% of the fee schedule. Many organizations attribute work relative value units (wRVUs) generated by split visits to the “Billing Provider;” and under the current requirements, the physician is usually designated, which awards the physician wRVU credit for the visit. If the APP becomes designated as the Billing Provider by performing a substantive portion (or all) of the visit, the APP would by default be awarded all the wRVU credit for the visit. The reason for this anticipated shift is due to the common understanding that APPs generally spend more time with the patient than the physician. The physician’s contribution is expertise and quality assurance, elevating the level of care overall; time is less of a factor. The immediate impact of this change is the involved physicians’ wRVU credit would significantly decrease.
- Organizations that utilize a production-based incentive program will need to consider this change and how wRVUs associated with split visits are allocated among the contributing providers and adjust the accounting of personally performed services of the physician accordingly.
- Organizations should communicate this impact on compensation design and other downstream impacts, such as discouraging team-based care approaches, to CMS during the comment period.
As noted above, if the APP, rather than the physician, is designated as the Billing Provider for split visits, organizations will receive 15% less Medicare revenue for visits previously reimbursed at 100% of the fee schedule. This shift could result in significant loss of revenue for some specialties.
- The financial impact of this change will need to be analyzed, and organizations should develop a proactive plan for addressing the revenue decrease.
- The anticipated revenue impact on your organization should be communicated to CMS in the comment period.
As part of the CY2022 Final Rule, CMS required a modifier be appended to all split visits for tracking purposes. After the Final Rule was published, modifier “FS” was designated to indicate split visits.
- Billing systems should be updated with the new FS modifier and processes developed to ensure the modifier is applied to all split visits.
- Robust internal auditing processes will need to be implemented to ensure split visits follow CMS requirements. The new FS modifier will make it easier for organizations and CMS to identify split visits for auditing purposes.
CY2023 Proposed Rule and Comment Period
CMS still believes adjusting the definition to be more than half of the total time—and not based on MDM or the key components—is the right direction to go. However, the delay in the CY2022 rule will allow time to consider feedback and comments from interested parties, so it can determine whether there is a necessity for additional changes to policy.
We highly encourage providers to offer comments to CMS regarding what they believe satisfies physician involvement during a split visit to bill at 100% of the MPFS, as well as the impact of the impending shift to a time-based approach to team-based care, reimbursement, and the need to overhaul physician compensation design to address physician personally performed services now allocated in APP billing data and reimbursed at 85% of prior reimbursement.
If you would like assistance with the 2023 MPFS Proposed Rule, or any matter involving valuation, strategy and transactions, or compliance, one of our executive contacts would be happy to assist. You may email them below, or call (800) 270-9629.