September 8, 2023 | By David Glaser
Can you do a “shared visit” in a physician clinic, site of service 11? The most common answer seems to be “no,” and while that is technically correct, it is so misleading that it is effectively entirely wrong. To understand this confusion, we need to dig into the regulatory definitions of “shared visits” and billing “incident to” a physician. Before I do that, let me declare, “When a physician and a non-physician practitioner (“NPP”) both see the patient in the clinic on the same day, it is totally appropriate to combine their work and bill it under the physician. Just don’t call it a shared visit.”
As you know, at the beginning of 2022, new regulations were issued establishing the requirements for shared visits. The regulations, now found at 42 C.F.R. § 415.150, define a split or shared visit as “an evaluation and management (E/M) visit in the facility setting that is performed in part by both a physician and a non-physician practitioner who are in the same group …” The regulations define a facility as “an institutional setting in which payment for services and supplies furnished incident to a physician’s services is prohibited.” These regulations were issued because the “incident to” benefit does not apply in the hospital. Because the “incident to” regulations may be used when services are provided in the clinic, the regulations define the term “shared visits” narrowly, limiting it to services occurring in a facility like a hospital or skilled nursing facility (SNF). Unfortunately, because Medicare chose to use the phrase “shared visit,” many people mistakenly believe that any encounter where a physician and a non-physician practitioner are working jointly (that is, in colloquial terms, “sharing” a visit) is governed by the shared visit regulations. While I understand that confusion, in fact, when two medical professionals both provide services to a patient on the same day in the clinic, we should not use the term “shared visit” to describe it because Medicare is limiting the use of that term to visits in a facility. Instead, when a visit occurs in the clinic, Medicare’s “incident to” rules apply. Medicare does not have a term to describe services by the two professionals on the same day within a clinic. We could create one, but whatever we choose to use will be our own term. I have had clients suggest a “Joint visit” or perhaps a “co-visit.” I like both of those options. The Manuals refer to a “combined visit” by two physicians, and that seems like a fitting term. Medicare will not formally label them as anything other than services that may qualify for the “incident to” benefit.
Medicare’s “incident to” benefit is described in 42 C.F.R. § 410.26. Section (b) of that regulation says that Medicare pays for services and supplies incident to the service of a physician if they are “an integral, though incidental part of the service of a physician (or other practitioner) in the course of diagnosis or treatment of an injury or illness.” There is a lot to unpack in that wording. Neither the term “integral” or “incidental” are defined. Candidly, I tend to think of those two words as nearly opposites, with “integral” being important and “incidental” being unimportant/insignificant. Since the regulation requires a service to meet both of those two terms, CMS is clearly viewing those two words differently than I would.
When I explain the requirement, I typically say the physician must initiate the course of treatment and remain periodically involved. That language is largely consistent with what appears in Medicare Benefit Policy Manual, Chapter 15 § 60.1.B, which says:
This does not mean, however, that to be considered incident to, each occasion of service by auxiliary personnel (or the furnishing of a supply) need also always be the occasion of the actual rendition of a personal professional service by the physician. Such a service or supply could be considered to be incident to when furnished during a course of treatment where the physician performs an initial service and subsequent services of a frequency which reflect his/her active participation in and management of the course of treatment.
Some services will involve new patient encounters. If the physician is not involved at all on that initial visit with a new patient, it would be improper for the physician to bill for the service as being “incident to” his or her work because the physician has not initiated the course of treatment. However, if the physician does see the patient during this initial visit, I am confident that it is permissible for the entire encounter to be billed under the physician’s name and number. My authority for that statement is 42 C.F.R. § 410.26(b)(2). The encounter is part of the course of diagnosis or treatment of an illness or injury and an integral, though incidental part of the services of the physician.
I have certainly heard people say, “Well, what if the nurse practitioner sees the patient immediately before the physician enters the room, then the physician has not truly initiated the care.” While I understand that point, the universal practice within the healthcare industry has been to permit services that happened during a visit where the physician is involved in the encounter to be billed under the “incident to” benefit. For example, it is nearly universal for a nurse to take the patient’s vitals and obtain preliminary information before the physician visits the room. I have never heard anyone argue that unless the physician has gone into the room first, that work is not considered part of the billable visit. Such a position would be incredibly strange and inconsistent with the way medicine has been practiced from well before the launch of Medicare in 1965. The bottom line is that in situations where the physician and non-physician practitioner are both involved in the care, it will be permissible to bill under the physician’s name and number. It just isn’t a “shared visit.” But whatever you choose to call it, you can, and I would argue should, bill it under the physician so your organization is receiving all of the compensation to which it is entitled.
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