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CMS will delay until next year a final decision on this contentious issue.

Every year, around this time, I feel a bit like Steve Martin in The Jerk, gleefully celebrating the arrival of the new phone books. That’s odd, sure, but excitement about the fee schedule may be even weirder. 

The 2023 Medicare Physician Fee Schedule makes one important, albeit unsurprising, change to the split-shared visit policy. First, some context.

In a clinic, when a physician and a non-physician practitioner (NPP) work together to treat a patient, Medicare’s incident-to benefit allows the physician to bill for the NPP’s work. There is a regulation, 42 CFR 411.15(m), that prevents physicians from using the incident-to benefit for services in a hospital, however. 

To permit physicians to bill when a physician and an NPP both see a hospital patient, Medicare created a shared-visit policy and placed it in the manuals. About a year and a half ago, the Centers for Medicare & Medicaid Services (CMS) withdrew those manuals after someone submitted a request under the “Good Guidance” regulation that allowed individuals to challenge agency policy when it was not supported by a regulation. (Unfortunately, that Good Guidance regulation has since been withdrawn, creating uncertainty about the ability to raise these issues going forward.) 

Last year, in the fee schedule, CMS formally issued a regulation creating shared visits. Under the regulation, the physician must do the “substantive portion” of the visit to bill. In 2022, there were two options on how to complete the substantive portion. First, if the physician did all of any of the three key components of an evaluation and management (E&M) service (that is, all the history or the exam or the medical decision-making), the physician could bill. Alternatively, if the physician spent more than half of the time with the patient, the physician may bill. However, under the original regulation, as of Jan. 1, 2023, a physician’s option of using one of the three key components would have evaporated, and physicians would be allowed to bill only if they spent the majority of the time with the patient.

That policy drew considerable criticism.

As a result, the proposed fee schedule this year included a one-year delay in the requirement, and that proposal has now been finalized. Basically, CMS is saying that during 2023, the rule from 2022 will continue, and physicians can use either the majority of time or any one of the three key elements. 

In the preamble discussion, CMS noted that many people object to the idea of using the majority of time as the mechanism to determine who can bill a shared visit. However, they didn’t totally withdraw the plan to require the use of time; they just delayed it until Jan. 1, 2024.

Fortunately, they do acknowledge that they will continue to receive comments on the topic. They also note that the American Medical Association/Current Procedural Terminology (AMA/CPT®) is evaluating how to define “the substantive portion of a visit,” and CMS is willing to consider adopting the CPT definition once it is finalized. But there is still reason to think that the very silly requirement that a physician spend the majority of the time with the patient to bill could take effect. The bottom line is that for the next year, a physician can bill for a shared visit if the physician performs all of the history, all of the exam, or all of the medical-decision making. After that, we will just have to see whether common sense prevails.

One reason I think the majority of time rule is foolish is that time is a bad measure of value. The other is summed up perfectly by the words of the late, great David Bowie, as he warned us about “changes.” “Time may change me. But you can’t trace time.” Here’s hoping that tracing time is never required for a shared visit.  

Programming note: Listen to David Glaser’s live “Risky Business” report every Monday on Monitor Mondays, 10 Eastern.

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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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