Updated on: July 18, 2019

Split/Shared E&M Policy Found to be in Error

Original story posted on: July 17, 2019

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Author finds fault with WPS policy.

You might think that you could rely on the accuracy of a Medicare Administrative Contractor (MAC) policy, but apparently, you can’t. 

First, I’d like to extend thanks to my colleague Sharon for sending me WPS’s deeply flawed split/shared evaluation and management (E&M) policy. If you click here, you can see a copy of the policy with my handwritten notes and a few reference numbers to easily identify the portions of the policy discussed below. First, remember that even the Medicare manuals published by the Centers for Medicare & Medicaid Services (CMS) are not binding, and publications from contractors are even lower on the regulatory hierarchy.

Since the regulations don’t mention split/shared visits at all, Chapter 12 of the Claims Processing Manual is the only source of official information about split/shared policies. WPS issued such a policy on Feb. 15, 2016, and updated it on May 7 of this year. The WPS document mischaracterizes Medicare policy in several important respects. 

The text by the circled blue “1” correctly states that a shared visit is considered proper when the “physician provides any face-to-face portion of the E&M encounter with the patient.” 

The quote by the “2” is accurate, so I won’t blame WPS on this point, but I want to emphasize that the assertion that a split visit requires the physician to perform a “substantive portion” of the work appears in a section of the Claims Processing Manual devoted to nursing home visits. As the text by “3” notes, shared visits can’t be billed in the nursing home. Moreover, if you are trying to gain guidance for a visit taking place in the hospital, you would not read a section devoted to skilled nursing facilities (SNFs); no rational person would rely on the SNF guidance for information about shared visits in the hospital. This misleadingly labeled text claims that a shared visit requires the physician to perform a “substantive portion” of the exam, defined as “all or some portion of the history exam or medical decision-making.” The standard established in these two sections is different.  The portion of the Claims Processing Manual citing shared visits indicates a general expectation that the physician will provide “any face-to-face portion of the E&M encounter.” The physician can perform medical decision-making without a face-to-face encounter. Therefore, the expectations articulated in the two sections are inconsistent.

The paragraph by the “4” opens by noting that both the physician and the non-physician practitioner (NPP) each must personally perform some part of the E&M. That is accurate. Thereafter, the WPS policy goes off the rails. It asserts that the physician and NPP each should document their own work. To the extent the policy uses “should” rather than “must,” I suppose we could overlook the statement, but there’s absolutely no authority for it. Then the paragraph ends with a completely made-up rule: “the NPP documenting what the MD/DO performed does not satisfy the split shared requirements.” What is the basis for this assertion?  Where is the requirement that a physician must personally document their work? Is that true of other medical record entries? Is transcription suddenly illegal? Transcription isn’t recorded by the physician. Medicare has not prohibited transcription, nor has it required a professional to personally write in the record. (Note that there are a couple of specific exceptions for which the regulations do in fact require documentation from a particular professional.  Since shared visits don’t appear in the regulations at all, however, they are not one of these rare cases.) 

The paragraph with a “5” indicates that you can combine time from the nurse practitioner (NP) and physician when billing by time. I hope that’s true, though I’ve historically believed it not to be the case. Then, by “6” is the bizarre claim that this policy applies exclusively to WPS, but not to the Comprehensive Error Rate Testing (CERT) or Recovery Audit Contractors (RACs) or other Medicare contractors. WPS lacks the authority to create a policy that changes Medicare coverage. RACs, the CERT program, and audits by a MAC all must apply Medicare regulations. If a service is payable, the RAC and MAC must reach that conclusion. WPS has no ability to create special rules that apply for claims it reviews, but that will not apply to an audit by a RAC. 

The flaws continue to get worse. WPS provides examples of acceptable and impermissible documentation. Look for the “7:” here WPS alleges that “seen and examined” passes muster; however, “patient seen” does not. The obvious implication is that the physician must perform the examination, and that merely seeing the patient is insufficient. But a shared visit is allowed when the physician has any face-to-face encounter with the patient. Even the suspect “substantive portion” language indicates that performing the history, decision-making, or the exam is sufficient. Under either exam, a physician can bill for a shared visit without performing an exam. 

Finally, my favorite: WPS says a note indicating that “the patient was seen and examined by myself and Dr. X” is insufficient. They are correct that the grammar is deficient – it should say “Dr. X and me” – but as noted above, it is perfectly permissible for the NPP to document the physician’s presence at the encounter.

This policy seriously misstates Medicare’s shared visit policy. It serves as a good reminder that before you choose to voluntarily refund the money or refund an overpayment, based on a MAC policy, confirm that the MAC policy accurately states Medicare program requirements.

Listen to David Glaser live every Monday on Monitor Monday, 10-10:30 a.m. EST.

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare 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 the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.


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