Providers want the Centers for Medicare and Medicaid Services to change a forthcoming policy on reimbursement for hospital visits when both a physicians and non-physician providers see patients. 

CMS’ recent physician fee schedule regulation proposes to delay a requirement that time spent with a patient would determine which provider could bill for a visit until 2024. CMS originally planned to start the policy next January. 

Healthcare trade groups welcomed the delay, but urged CMS to use the extra time to figure out an alternative policy that would allow billing based on what provider spent the most time with a patient, or on who led the medical decision-making. Providers worry the policy could lead to a 15% pay cut for facilities. 

“We continue to have substantial concerns about this policy and thus support CMS’s proposal to delay its implementation. We urge the agency to use this delay to re-examine this policy, including by working with stakeholders to develop an alternative proposal to billing split or shared visits,” the American Hospital Association wrote in a comment letter to CMS. 

Medicare pays more for physician services than for services other advanced providers, such as physician assistants and nurse practitioners, perform. While doctors get the full Medicare payment for evaluation and management visits, non-physicians typically get 85% of the Medicare rate. 

In an office setting, providers can use “incident-to” billing, and charge for a physician visit when a non-physician provider sees a patient. However, incident-to billing doesn’t apply in hospital and other facility settings. 

Until last year, CMS relied on guidance documents to govern billing for split or shared visits in a facility setting, and allowed physicians to bill for shared evaluation and management visits when the physician performed a substantive portion of the service. 

But a Trump administration rule

In January 2021, the Health and Human Services Department issued a draft regulation that aimed to crack down on policies made outside of notice-and-comment rulemaking, which brought the shared visit guidelines to the forefront. CMS withdrew the shared visits billing guidance in May 2021, and announced it would come back to the policy in rulemaking. 

CMS’ physician fee schedule for 2022 expanded when providers could bill shared visits, codified a definition for the visits and, crucially, used time to determine which provider performed the substantive part of a visit.

Providers expressed concern with the policy in comments on the 2022 fee schedule. The Mayo Clinic described time-tracking as “hugely problematic” in a comment letter sent to CMS last year. 

“What may have been deemed the physician spending a ‘substantive’ amount of time in the [evaluation and management] visit may change when another [non-physician practitioner] of the same specialty sees the patient later in the day. The [non-physician practitioner] may be unaware of how much time each provider spent with the patient, especially if all providers do not document time,” the Mayo Clinic wrote. 

More than 40 healthcare trade organizations sent another letter to CMS in March urging the agency to propose a shared visits policy based on decision-making as well as time. The policy finalized in this year disrupts team-based care, the groups wrote. 

Although CMS finalized the changes last year, the agency in July proposed delaying the policy for using time to determine billing. An extra year would give providers time to get used to other evaluation and management billing changes, according to CMS. The delay also gives CMS an opportunity to collect more feedback and figure out whether the policy needs tweaking, the agency wrote in its proposed rule. 

Providers applauded the delay in comments on the recent fee schedule proposal, but continued to voice concerns about using time to decide which provider can bill. The American Association of Nurse Practitioners said the policy could lead to more visits billed under non-physicians, which could cause a steep pay cut.  

“Billing under a physician versus a nurse practitioner allows them to be reimbursed at a rate 15% higher than if billed by an NP. This is an acute problem in rural and underserved areas, where systems and facilities with limited financial resources may be unable to sustain 15% reduction in payments, despite the NP providing the same service as their physician colleague,” the organization wrote to CMS. 

Providers asked regulators to allow both time and medical decision-making to determine which clinician ran the substantive portion of a visit. 

“Time is not necessarily the essence of patient care. Medical decision making is a critical element in managing the patient’s care; however, it does not typically require the most time. Physicians are compensated for their ability to synthesize complex medical problems and undertake appropriate treatment actions,” the Association of American Medical Colleges wrote in a letter. 

Emily Cook and Caroline Reignley, both partners at law firm McDermott Will & Emery, expect CMS will finalize the delay of the policy. But while Cook said she wouldn’t be surprised to see the agency allow billing based on medical decision-making next year, Reignley is more skeptical.  “CMS likes objective measures. I think time is more objective—medical decision-making gets squishy,” Reignley said. 

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