By Allison Shelton and Beth Anne Jackson, Brown & Fortunato, P.C.
Recent pronouncements from the Centers for Medicare and Medicaid Services (CMS) produced considerable uncertainty regarding Medicare coverage of shared and split evaluation and management (E/M) visits in the hospital setting. Effective May 9, 2021, CMS removed manual provisions setting forth a billing and payment policy that has been in place for nearly twenty years. Subsequently, on May 26, 2021, CMS issued a notice regarding the manual changes which failed to provide any clarity regarding the impact of the revisions on Medicare’s coverage for shared and split E/M visits.
On May 9, 2021, CMS removed provisions in Chapter 12 of the Medicare Claims Processing Manual that relate to E/M visits shared or split between physicians and advance practice professionals (APPs), including nurse practitioners and physician assistants. Medicare will cover one E/M visit in the hospital setting per day. Reimbursement for such visits varies based on the complexity of the case and the services involved. Reimbursement also varies based on the type of practitioner who performs the E/M visit.
When an APP performs the E/M visit, Medicare will pay eighty-five percent of the amount that would have been paid to a physician. However, if the E/M visit is shared or split between a physician and an APP, CMS historically paid one hundred percent of the physician fee schedule rate under Medicare’s longstanding—but now uncertain—payment policy.
It is common practice for physicians to split or share the work involved in an E/M visit with an APP who is employed by or part of the physician’s group practice. And, under Medicare’s historical payment policy, CMS provided full reimbursement for such visits if the physician saw the patient face-to-face and performed a substantive part of the E/M visit. Moreover, Medicare paid one hundred percent of the physician rate even though a significant portion of the E/M visit was performed by an APP.
Medicare’s payment policy for shared and split visits was not established under any law or regulation. Rather, the policy was set forth in provisions that CMS recently removed from Chapter 12 of the Medicare Claims Processing Manual. For example, one deleted provision in Section 30.6.1.B. of the manual stated: “When a hospital inpatient/hospital outpatient . . . or emergency department E/M is shared between a physician and an [APP] from the same group practice and the physician provides any face-to-face portion of the E/M encounter with the patient, the service may be billed under either the physician’s or the [APP’s] UPIN/PIN number.”
Likewise, CMS deleted the following example of a covered service from Section 30.6.1.B: “If the [APP] sees a hospital inpatient in the morning and the physician follows with a later face-to-face visit with the patient on the same day, the physician . . . may report the service.” This example was first included in Medicare manuals in 2002. Now, CMS has replaced this provision and related guidance with the following statement: “Left intentionally blank for future updates.”
Following the revisions to the Medicare Claims Processing Manual, CMS and Medicare Administrative Contractor representatives provided informal guidance suggesting that the manual revisions will have no impact on Medicare’s coverage of shared and split visits. The reliability of such guidance is questionable under the “CMS Notice Regarding Split (or Shared) Evaluation and Management Visits and Critical Care Services from May 26, 2021, through December 31, 2021” that CMS subsequently issued on May 26, 2021. CMS’s notice is currently available at: https://www.cms.gov/files/document/enf-instruction-split-shared-critical-care-052521-final.pdf.
In the notice, CMS indicates that it will address shared and split visits in forthcoming regulations. In the meantime, such visits will be subject to existing Medicare law and regulations. Further, CMS’s notice includes nine bullets identifying legal citations that establish Medicare’s payment standards.
Legal citations to the law establishing Medicare’s general payment policy for APP services are included in the notice. Additionally, regulations establishing Medicare’s coverage for APP services performed “incident to” the services of a physician outside the hospital setting are cited in the notice. Notably, none of the laws and regulations cited in the notice authorize Medicare to pay one hundred percent of the physician fee schedule rate for a shared or split visit in the hospital setting.
The final paragraph of CMS’s notice states: “Until such time as CMS promulgates a final rule regarding split (or shared) E/M visits and critical care services, the agency will limit review to the applicable statutory and regulatory requirements for purposes of assessing payment compliance.” Existing law and regulations do not establish Medicare’s historical payment policy for shared and split visits. Thus, the level of Medicare coverage for such visits is currently uncertain.
Until CMS issues new regulations regarding split or shared visits, physicians and their billing agents should evaluate existing billing practices to ensure compliance with the laws and regulations cited in CMS’s notice from May 26, 2021.