CMS Proposes New Regulation to Clarify Physician and NPP “Split (or Shared)” Billing Policy

Présentation


On July 13, 2021, the Centers for Medicare & Medicaid Services (CMS) released the calendar year (CY) 2022 Medicare Physician Fee Schedule (MPFS) proposed rule (Proposed Rule). The Proposed Rule sets forth CMS’ plans to revise Medicare payment policies and rates for the upcoming year. In the CY 2022 Proposed Rule, CMS provides its proposal for regulations codifying its long-standing guidance on billing for “split (or shared)” evaluation and management (E/M) visits. Split (or shared) visits are E/M visits provided in part by both physician and non-physician practitioners (NPPs). NPPs generally include nurse practitioners, physician assistants and clinical nurse specialists and are also known outside of the Medicare program by other names, such as advanced practice practitioners (APPs). The proposed regulations incorporate some changes from the historical guidance that introduce new opportunities and restrictions on split (or shared) visits.

In Depth


BACKGROUND

Under the MPFS, physicians are reimbursed at a higher payment rate than services furnished by NPPs. In the physician office setting, when a patient visit is performed in part by a physician and a NPP, the physician is permitted to bill for the visit, provided the visit meets the Medicare requirements for services furnished “incident to” a physician’s professional services. Historically, CMS relied on guidance found in the Medicare Claims Processing Manual (MCPM) to permit a physician to bill for visits performed in part by a NPP outside of the physician office setting. In May 2021, in response to a petition submitted under the U.S. Department of Health and Human Services’ (HHS) Good Guidance Practices Regulation, CMS withdrew the MCPM sections specifically addressing split (or shared) visits and indicated that CMS would reissue the guidance as proposed regulations.

If finalized, the new regulations would specify the requirements that must be met in order for a physician or NPP to bill a split (or shared) visit in a hospital, skilled nursing facility (SNF) or other facility setting. The Proposed Rule would expand the clinical scenarios under which a healthcare professional can bill for services performed in part by another practitioner but would also impose restrictions on which performing practitioners can bill for the split (or shared) visit.

ANALYSIS

In addition to clarifying when split (or shared) visits may be billed to Medicare, the proposed regulations would also modify CMS’ policy, permitting physicians and NPPs to bill for split (or shared) visits for both new and established patients, critical care services and certain E/M visits in a SNF. The prior guidance limited split (or shared) visit billing to established patients and prohibited billing for split (or shared) visits involving critical care services or in SNFs. The regulations would also define “split (or shared) visit” as E/M visits performed in part by a physician and NPP in institutional settings for which “incident to” payment is not available. This is intended to distinguish between the policy applicable to services furnished “incident to” the professional services of a physician in a physician office setting and the policy applicable to services furnished in a facility setting.

Additionally, CMS is proposing to establish which of the physician or NPP performing a split (or shared) visit can bill Medicare for the visit. This is an important concept because the visit is paid at a higher rate if the physician submits the claim rather than the NPP. Historically, in determining whether a physician or an NPP may bill for a split (or shared) visit, either the physician or NPP could bill for the service so long as the billing practitioner performed a “substantive portion” of the visit. In the Proposed Rule, CMS proposed to codify this policy by utilizing time—as opposed to medical decision-making or a key component of the E/M visit—as the key factor in determining whether the physician or the NPP performed the substantive portion of the visit. CMS would further limit the billing practitioner to the individual who performed more than 50% of the visit. CMS is also proposing a list of activities that may count toward the total time of the E/M visit for purposes of determining the provider who performed the substantive portion of the visit. Under the Proposed Rule, documentation in the medical record would need to identify both professionals who performed the visit and the individual who performed the substantive portion (and bills for the visit) would need to sign and date the medical record.

The withdrawn MCPM guidance generally did not permit split (or shared) visits to be billed for new patients, however, CMS is proposing important clarifications to its policy to permit either a physician or a NPP to bill for split (or shared) visits for both new and established patients and for initial or subsequent visits. This expands the availability of split (or shared) visit billing in the facility setting.
Under its previous policy, CMS did not permit healthcare professionals to bill for split (or shared) visits for critical care services or for E/M visits in a SNF. In the Proposed Rule, CMS is proposing to permit healthcare professionals to bill for split (or shared visits) that are critical care services. However, CMS proposed to clarify that no other E/M visit can be billed for a patient on the same date as critical care services are furnished when the services are furnished by the same professional (or professionals) in the same specialty and group. CMS is also expanding split (or shared) visit billing to permit E/M visits to be furnished by a physician and a NPP in a SNF setting.

In the Proposed Rule, CMS explicitly declined to define “same group” for purposes of the new split (or shared) visit billing rule and is seeking comments on how to define same group. While the Proposed Rule retains the requirement that split (or shared) visits be performed by a physician and NPP who are in the same group, CMS noted that it considered several options, including using the definition under the Stark Law or considering practitioners under the same billing tax ID number to be the same group. CMS also noted that some of the options it evaluated do not align with the definition of “group” used for Medicare enrollment purposes. This determination is important because if the two practitioners are determined not to be in the same group, neither of them may be able to bill for the visit if neither performed a complete E/M visit. CMS makes clear in the Proposed Rule that it will not pay for partial E/M visits.

Finally, CMS is proposing to create a claim modifier that would be mandatory for split (or shared) visits. This modifier would allow CMS to identify services furnished in part by NPPs and allow for more targeted review of services furnished by physicians and NPPs.

To summarize the previous guidance and the proposed revisions to CMS’ policy for split (or shared) visits in the Proposed Rule, please see the following chart:

Issue Prior Guidance Proposed Rule
Who Can Bill? Practitioner who performs a « substantive portion » of the E/M visit Practitioner who performs more than half of the total (non-duplicated) time spent on the E/M visit
Setting of Care Institutional setting other than a SNF Any institutional setting, including SNF (other than visits required to be performed in their entirety by a physician)
Definition of « Same Group » Not defined Not defined (seeking comments)
Medical Record Documentation Not defined Must identify the practitioners who performed the visit and billing practitioner must sign and date the medical record
Claim Modifier None To be required (specific modifier not yet determined)
Critical Care Split (or shared) billing not permitted Split (or shared) billing permitted

PRACTICAL IMPLICATIONS

CMS proposed significant changes to its long-standing policy on billing for split (or shared) visits in the facility setting. The changes provide both new opportunities for billing such visits but may also restrict the reimbursement opportunity for services that are performed primarily by NPPs. Providers have an opportunity to provide feedback about the proposed regulations, including providing input to CMS on concepts that have long been unclear, such as the definition of “same group.” Given the increasing involvement of NPPs in care furnished in facility settings, interested providers should actively engage with CMS to ensure that the regulations are developed in a manner that will best situate providers to implement the revised policy for split (or shared) visits. Comments to the Proposed Rule must be submitted by September 13, 2021.