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Remember that just because a MAC says it, doesn’t mean it is true.

It seems reasonable to expect Medicare Administrative Contractors (MACs) to make sure that their FAQs are accurate, but in fact, there are often problems with MAC publications. An NGS FAQ about shared visits has had at least two significant errors, one recently corrected, and one still in print.    

A client contacted me about 10 days ago because they read a FAQ that NGS had posted on shared visits and consultations. They wanted to confirm its accuracy. The publication had one question in particular at issue: “Can a consultative service in a hospital setting be performed on a split/shared basis?”

NGS’s original answer:

“CMS (the Centers for Medicare & Medicaid Services) rules on consultative services have not changed, despite the use of standard E/M (evaluation and management) coding for inpatient and outpatient consultative services, since 2010. When a provider requests a consultative opinion of another provider, the consulting provider must perform the service independently and cannot split/share the required elements of the consultative E/M service.”

That answer was published on Jan. 3, 2022. I came a bit unglued when reading it, because it is so very terribly wrong. 

As I’m sure most of you know, Medicare basically banished the idea of a consultation about a decade ago. The term still appears in a few contexts, including in the Stark Law, but Medicare doesn’t recognize consultations as a type of E&M visit. Requests for an opinion aren’t billed as a consultation code. You just use a standard E&M code for a new visit, initial hospital visit, or other traditional E&M service.

There should be absolutely no doubt that standard E&M codes can be billed as shared visits when in the hospital. In fact, that is why we have shared visit codes. 

One of the phrases I found particularly offensive was the claim that “CMS rules on consultative services have not changed.” That statement is accurate only in the sense that there are not, and never have been, any regulations governing consultations. The word “rules” should be used to refer to regulations. Manual provisions are merely guidance, not rules. Since there have never been any regulations about consultations, saying that the rules have not changed is akin to saying there have been no changes to the posted speed limit on the surface of Saturn. True, but grossly misleading.

So, I was prepared to really rip into NGS, but it turns out that there is one piece of good news. Right after my client asked me this question, NGS realized their error. The new answer to the question says: “As of 1/1/2022, CMS has confirmed that consultative services may be performed on a split/shared basis.” That answer was revised on March 18, literally the day after the client asked me about it. Kudos to NGS for recognizing their error. But I can’t give them too much credit, because they had a categorically wrong FAQ up for two and a half months. Worse yet, the FAQ still includes a different, equally incorrect answer. 

The NGS FAQ (found here) asks “what requirements apply to documentation for consultative services?” Now, remember, CMS doesn’t pay for consultations, so the obvious answer is “none.” Yet for reasons I can’t fathom, NGS says that “the attending physician/NPP (non-physician practitioner) who is requesting the consultation must enter a consultation request in the medical record.” What a bunch of hooey. To repeat, what had been billed using a consultative code is now just a traditional E&M service. There is no requirement that anyone record who is requesting an E&M service. NGS just made this up. 

I understand that Medicare is complicated. But the MACs should be better about accurately conveying Medicare policy. The mistakes in the FAQ are quite basic.

It is important to remember that just because a MAC says it, doesn’t mean it is true.

Programming Note: Listen to David Glaser’s live reporting every Monday on Monitor Mondays, 10 Eastern.


David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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