2019 Proposed E&M Changes Appear to Violate Social Security Act Statutory Language

Original story posted on: August 22, 2018

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The proposal would present a dangerous precedent for all of medicine.

On July 12, 2018, the Centers for Medicare & Medicaid Services (CMS) released its proposed rule on the 2019 Medicare Physician Fee Schedule (CMS-1693-P). In what they say is an attempt to reduce physician burden, CMS is proposing to reform documentation requirements for evaluation and management (E&M) services in the following manner:

First, CMS would consolidate reimbursement for office-based and outpatient E&M visit levels 2 through 5 (i.e., CPT® codes 99202 through 99205 for new patients and CPT codes 99212 through 99215 for established patients) into a single flat-rate payment for new patients and established patients, respectively, regardless of which code(s) is billed. Documentation requirements would be the same as they currently are for level 2 codes (99202 or 99212, as applicable).

Second, CMS proposes to require podiatric physicians to use new “podiatrist-specific E&M codes:” G codes that were developed by CMS for podiatrists only. Such codes would require the same documentation as the standard E&M codes and reimburse at a significantly lower rate, despite representing the exact same services that all other physicians provide. This proposal violates statutory language in the Social Security Act, and looks as though it would present a dangerous precedent for all of medicine. Such drastic actions should concern everyone in the field.

Podiatrists are recognized as physicians under the Medicare statute. CMS’s proposals serve to provide differential payment to podiatrists with lower relative value units (RVUs) for the same E&M services. The most important thing to remember is this: The Social Security Act expressly prohibits differential valuation of services paid under the Physician Fee Schedule based on specialty.

This prohibition comes from Section 1848(c)(6) of the Social Security Act, which reads that “the Secretary may not vary the number of RVUs for a physician’s service based on the specialty of the physician.” CMS proposes that, rather than reporting visits under the general E&M code set, podiatrists would instead report visits under the aforementioned new G codes – which, according to CMS, more specifically value their services. However, CMS does not provide any rationale for why the services required for patients seeking care from podiatrists is distinct from that provided to patients with the exact same pathology and similarly complex care needs seeking medical care from other physicians. Much of the care provided by podiatrists is care that prevents pathology; it saves limbs, saves lives, and results in significant savings to the health-care system.

This proposal should concern everyone because it is a departure from how CMS has historically functioned and would establish scary precedent. And, what’s more, it begs the question: who could be next?

The good news is that this is only a proposed rule, and we all have the opportunity to do two very important things. One is to submit comments to CMS. The other is to write to your elected officials. We have spoken with many congressional leaders already. They are concerned about this violation of statutory language. They care about upholding the law, and about healthcare. They want to hear from their constituents. The more people they hear from, the better.

So go online, find out who your congressional representatives are where you live and work, and write to them using their websites to explain the violation of the Social Security statute described above. It is unfair to pay different specialists differently for the same service.

Be sure to submit comments to CMS by Sept. 10, 2018. You can do this at Regulations.gov by searching for the “2019 medicare physician fee schedule.”

It will be the fourth search result down, titled “Medicare Program: Revisions to Payment Policies under the Physician Fee Schedule and Other Revisions to Part B for CY 2019.”

Comment now, and explain that while we appreciate the effort to decrease documentation burden, singling out podiatrists for separate codes with decreased reimbursement is not necessary to accomplish this goal.


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Jeffrey D. Lehrman DPM, FASPS, MAPWCA

Dr. Lehrman is a diplomate of the American Board of Foot and Ankle Surgery, fellow of the American Society of Podiatric Surgeons, fellow of the American College of Foot and Ankle Surgeons, and fellow of the American Academy of Podiatric Practice Management, and he is recognized as a master of the American Professional Wound Care Association. He is the Chair of the Board of Directors of the American Society of Podiatric Surgeons. He is also on the Board of Directors of the American Professional Wound Care Association. He is an expert panelist on Codingline.com and sits on the APMA Coding Committee. Dr. Lehrman has lectured nationally and internationally on practice management and other topics.

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