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CMS Proposes Potential Changes to Documentation Requirements for E/M Visits

On July 27, 2018, the Centers for Medicare and Medicaid Services (“CMS”) published a proposed rule containing numerous potential changes to the Medicare physician fee schedule and other Medicare policies. See 83 Fed. Reg. 35704 (July 27, 2018). The proposed rule is intended to update Medicare’s payment systems to better reflect the relative value of services.

Among the many potential changes are proposed updates to Medicare’s policies concerning documentation requirements for Evaluation & Management (“E/M”) services in outpatient or office settings. Currently, providers can choose between two versions of CMS guidance commonly referred to as the 1995 or 1997 E/M Documentation Guidelines. Both versions follow the same general framework to determine the appropriate billing code level based on three documentation components: (1) History of Present Illness (“HPI”), (2) Physical Exam, and (3) Medical Decision Making (“MDM”). Each of the three components measure multiple factors that a practitioner can consider when determining the proper E/M level for a visit.

CMS has also proposed removing redundancies and simplifying E/M documentation requirements. Regarding the Review of Systems (“ROS”) and pertinent past, family, and/or social history (“PFSH”) elements of a patient’s history, CMS proposes to only require practitioners to focus their documentation on “what has changed since the last visit or on pertinent items that have not changed, rather than redocumenting a defined list of required elements.” Id. at 35838. This change would only apply to documenting visits from established patients, and it would prevent practitioners from having “to re-record these elements (or parts thereof) if there is evidence that the practitioner reviewed and updated previous information.” Id.

Another redundancy CMS proposes to eliminate is that “for both new and established patients, practitioners would no longer be required to re-enter information in the medical record regarding the chief complaint and history that are already entered by ancillary staff.” Id. Currently, the billing practitioner must enter these items to be credited as supporting the level of E/M visit selected, even if ancillary staff already entered the same information into the documentation. Instead of requiring the billing practitioner to re-enter the exact same data, this proposed change would permit the practitioner to somehow “simply indicate in the medical record that they reviewed and verified this information.” Id.

These changes, and many others, are not yet final, and the public has until September 10, 2018 to submit formal comments to CMS regarding the proposed rule. After the comment period closes, CMS will consider the feedback from stakeholders and then may choose to alter or withdraw various potential changes before finalizing the rule. CMS will eventually publish the final rule, but it is impossible to know when or if any of these proposed changes will ever go into effect. CCLB will continue to monitor developments and update this alert as appropriate.

The attorneys at CCLB represent healthcare providers of all types and sizes in connection with a wide-variety of regulatory and compliance matters, including enforcement actions involving civil and/or criminal health care fraud. For any questions, or if we can assist you in connection with a healthcare regulatory or compliance issue or audit/investigation, please contact us at (404) 262-6505 or sgrubman@cclblaw.com.