MPFS Final Rule Released

CMS clearly is honing-in on reducing administrative burden as changes go into effect.

 On Friday, Nov. 1, the Centers for Medicare & Medicaid Services (CMS) released the Medicare Physician Fee Schedule (MPFS) Final Rule for the 2020 calendar year. While the official Federal Register version won’t be available until Nov. 15, the 2,475 double-spaced pages can be reviewed right now online here.

The main theme throughout the final rule is lowering the administrative burden. For example, CMS is going to allow anesthetists to perform pre-anesthesia assessments. However, the final rule is not quite as generous as the original proposal. A physician will be required to evaluate the risk of the surgical procedure itself, while either a physician or an anesthetist may assess the risk of anesthesia and the patient’s ability to tolerate it.

Another welcome theme running through the updated fee schedule is making Medicare requirements more consistent with state law. CMS indicates that many of its scope-of-practice requirements will now say that if an activity is consistent with state law, it is acceptable to Medicare.

The hospice rules are being amended to allow hospices to accept medication orders from non-physician practitioners as well as physicians.

There is a discussion about the Stark advisory opinion process centering on this one fun little statistic. This process has existed for 20 years. During those 20 years, 31 advisory opinions have been issued. Fifteen of those opinions involved the moratorium on physician hospitals. In other words, no one uses the Stark advisory opinion process. As a result, CMS is making changes in the hope of prompting more questions, specifically, shortening the timeframe for responding to opinions from 90 days to 60. However, it still will not allow requests for hypothetical opinions, nor will it give an opinion on whether a relationship takes into account the volume or value of referrals. The bottom line is that I wouldn’t expect a sudden burst of opinion requests.

The change I am most focused on involves evaluation and management (E&M) coding. You may recall that last in year’s fee schedule, CMS indicated that effective 2021, it would dramatically change reimbursement for E&M services. 

Significant changes will, in fact, occur on Jan. 1, 2021, but they are different than the ones adopted last year. Consistent with the proposed rule that came out this summer, the plan to reimburse office visits at levels 2 through 4 at the same rate has been scrapped. There will still be different payments for each of the five levels of office visits, for established patients. With the elimination of code 99201, there will only be four levels of new patient visits, but each of those four levels will have its own reimbursement rate. 

But another major change is coming. As of 2021, history and exam will no longer be key elements of E&M billing. To determine the level of service, the physician will either use the level of medical decision-making performed or the length of time the service lasted. Thirteen months from now, time or medical decision-making will control the level of E&M service. And the way that time is used to determine the level of service be very different. First, the total time spent on the patient’s behalf on the date of service will count, not merely face-to-face time. Coordination of care before or after the visit will count as part of the time if it is performed by the professional billing the encounter. Second, the amount of time necessary to bill various codes will be changing. Those changes all become effective Jan. 1, 2021.


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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