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Addressing the Challenges of New CMS Regulations

Addressing the Challenges of New CMS Regulations

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The University of Pittsburgh Online Master of Studies in Law (MSL) and Health Care Compliance (HCC) Certificate programs hosted an online event in April 2023 during which faculty experts discussed the challenges of new U.S. Centers for Medicare & Medicaid Services (CMS) regulations. The presentation by Mary Neil Cummings, adjunct professor of law and director of the Health Care Compliance Online Certificate program at Pitt Law, and Linn Swanson, adjunct professor of law at Pitt Law and former chief audit officer and chief compliance officer for University of Pittsburgh Medical Center Health System, highlighted the latest regulatory changes and what they mean for compliance professionals.

Read on to learn more about upcoming regulatory changes affecting health care providers, in particular the new shared/split services rule. Additionally, learn why implementation of the new rule will be challenging, including risks and best practices.

Frequency of Regulatory Change

CMS regulates health care for more than 100 million people through Medicare, Medicaid, the Children’s Health Insurance Program, and the Health Insurance Marketplace. It’s regulations seek to provide:

  • Better accessibility for patients
  • Higher quality of care
  • Greater affordability of care
  • More innovation in clinical practice

Compliance officers must be ready to understand and address the frequent regulatory changes CMS enacts to meet these goals.

Why Are CMS Regulations Important?

Medicare and Medicaid together cover the health care needs of more than one-third of the U.S. population, so regulation is important to ensure the money that pays for them is well spent.1

“The goal of CMS regulations is to promote better accessibility, quality of care, affordability of care, and innovation in clinical practice,” said Swanson. “Most health care insurance companies also follow the CMS medicare regulations.”

Payment Policy Changes

Payment policy changes can affect providers’ eligibility for payment. Proposals are published and have a comment period for providers and others to provide feedback.

As an example, in April 2023 CMS proposed a rule that adopted new hospital quality measures, and proposed recognizing homelessness as an indicator of increased resource needs. When patients don’t have a place to go after a hospitalization, they usually have a longer stay in order to ensure they are stable enough to be discharged. The proposed new code allows the provider to account for the longer hospital stay.

A recent payment rule adopted by CMS raises issues for compliance officers as they prepare for the changes the rule requires.

Shared/Split Services Billing

Shared or split services are Evaluation and Management (E/M) services performed jointly between a physician and a non-physician practitioner (NPP) (such as a nurse practitioner or physician’s assistant), that are in the same group in a facility setting. Previously, a physician and an NPP could both provide services to a patient in the same visit, and the entire visit would be billed at the physician’s rate.

Upcoming Challenge

CMS proposed in 2021 that Shared/Split services be billed by the practitioner who provides services that are more than 50% of the time of the split or shared visit. The medical record must identify the physician and NPP who performed the visit, and the record must be signed and dated by the person who performed the substantive part (more than 50%) of the visit. A claim modifier must be included to identify that the service was a split or shared visit.2 This makes these records easily auditable.

This is a major change for organizations because in general, physicians who perform Evaluation and Management services in facilities do not bill by or keep track of time.

CMS Reprieve

CMS has delayed its implementation of the Share/Split Services rule several times and in July 2023 it announced it will delay implementation through the end of 2024. For the time being, organizations are to follow the process CMS allowed in 2021 which is that Shared/Split services will be billed by the provider who performs the substantive portion of the visit, which can be either more than 50% of the time involved or performing all of a key component. Key components are taking the medical history, performing the medical exam, or medical decision making. The record must identify the two individuals who performed services, and the provider who performed the substantive portion must sign and date the medical record. The claim modifier will flag these records for Medicare.

Compliance Response

The compliance team’s mission is to stay on top of changes like the new Shared/Split Services rule, and work with a team to understand how to implement those rules in a way that is practical, protects patients and the organization. Compliance should follow these steps for implementation:

  • Identify risks through effective lines of communication
  • Designate a compliance lead to help other stakeholders create a plan to address the changes
  • Update policies, procedures and systems as needed
  • Develop effective training for employees impacted by the changes
  • Monitor implementation of the changes and audit for compliance
  • Respond promptly to errors and retrain as needed
  • Enforce the new policies through discipline if needed

“No one likes change, especially if it’s very significant to their workflow,” said Swanson. “But compliance needs to help management implement the new changes and understand their impact on the workflow of physicians, because I do believe it will decrease productivity with the increased documentation needs.”

Advance preparation for these major changes is essential. The compliance team has never been more important than it will be when the new shared/split services rules are announced and go into effect.

Gain the Expertise That Helps You Stay on Top of Compliance

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Health Care Compliance Certificate

The HCC Certificate program teaches you the relevant law and practical applications of compliance. Gain knowledge of best practices through exploration of current issues, and learn from Pitt Law’s expert faculty, including professors of the School of Law and Graduate School of Public Health, current and former federal regulators, and compliance-industry experts.

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“You’ll be taught by expert faculty. We have people who work for the FDA in our faculty. We have lawyers that have national reputations for privacy and false claims act in our program,” said Cummings. We are very proud of our faculty. And the program also lets you network with fellow professionals because your fellow students will be attorneys, clinicians, social workers, physical therapists—people who are interested in getting into compliance people who are already working in compliance. Everyone contributes to the course discussions, and you learn the views of other professionals.”

Master of Studies in Law (MSL)

Because of the increasingly competitive job market, a bachelor’s degree alone might not be enough for professionals looking to move forward in their career. Higher education has become desirable for many lucrative and executive-level jobs, or even to advance in your current job. A master’s degree can help expand your knowledge and experience and improve your chances of getting promoted or hired. Choose from specializations in health care compliance, corporate compliance, human resources law, or international business law to round out your MSL degree.

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