The Useful 5: Regulatory Roundup for Rev Cycle Leaders

HealthLeaders' regulatory round up series highlights five essential governing updates that cover every aspect of the revenue cycle that leaders need to know. Check back in each month for more updates.

The revenue cycle is complex, detailed, and always changing, so staying on top of regulatory updates and latest best practices requires revenue cycle leaders' constant attention in this ever-changing industry.

In this revenue cycle regulatory roundup, there were an ample number of updates published by CMS and the OIG in November, including the OPPS and physician fee schedule final rules.

Here are the five updates you need to know.

Medicare providers did not always comply with federal requirements when billing for advance care planning.

The OIG published a review regarding whether Medicare providers who received payments for advance care planning (ACP) services in an office setting complied with federal requirements.

The OIG found that 466 of the 691 ACP services did not comply with federal requirements. Issues included providers claiming that they did not know that the time for ACP services had to be distinguished between time spent discussing ACP and time spent on concurrent services. Some providers said they were unaware there was a time requirement.

The OIG said that, based on this sample, it estimates that Medicare providers received approximately $42.3 million in payments for ACP services that did not comply with federal requirements.

The OIG also noted that it found some claims where 15 or more ACP services were received during the 12-month audit period, and while that did not reflect noncompliance, it did not align with CMS guidance in an FAQ suggesting that ACP services billed multiple times for a beneficiary should include a documented change in the beneficiary’s health status, end-of-life care wishes, or both. 

The OIG recommends CMS educate providers on documentation and time requirements for ACP services, instruct the MACs to recoup the money paid in error for claims in the sample, and instruct the MACs to notify providers so they can identify, report, and return similar overpayments.

The OIG also recommends CMS establish requirements that address when it is appropriate to provide multiple ACP services for a single beneficiary and how these services should be documented to support the need for multiple ACP services. CMS concurred with all but the fourth recommendation.

Medicare improperly paid physicians for co-surgery and assistant-at-surgery services that were billed without the appropriate payment modifiers.

The OIG published another noteworthy review in November, this one focused on whether Part B payments to physicians for potential co-surgery procedures complied with federal requirements.

The OIG found that 69 of the 100 statistically sampled services did not comply with requirements. This included 49 services incorrectly billed without the co-surgery modifier, 14 incorrectly billed without an assistant-at-surgery modifier, and six that were incorrectly billed as duplicate services.

The OIG also reviewed 127 corresponding services and found that 62 of those did not comply with federal requirements, as 33 were incorrectly billed without the co-surgery modifier, 16 were incorrectly billed without an assistant-at-surgery modifier, and 13 were incorrectly billed as duplicate services. The OIG determined that these errors resulted in $56,016 in overpayments. 

The OIG recommends CMS recover the portion of the $56,016 in Part B overpayments within the claim reopening period, instruct Medicare providers to identify, return, and report any similar overpayments, strengthen its system control to detect and prevent improper payments for these types of services, and update Medicare requirements and corresponding educational material to improve providers’ understanding of the Part B billing requirements for co-surgery procedures.

CMS concurred with these recommendations.

Medicare began its enrollment of rural emergency hospitals.

CMS published a transmittal regarding the addition of information about rural emergency hospitals (REH) enrollment applications to the manual.

This information walks through the process for a critical-access hospital or rural hospital wishing to convert to an REH and provides instructions for the contractors on processing these enrollment applications. The transmittal was originally published internally on September 15, but it is no longer sensitive information and is now posted for the public.

The 2023 Medicare physician fee schedule final rule was released.

CMS published the 2023 Medicare physician fee schedule final rule. The rule finalized a decrease in the conversion factor down from $34.61 in 2022 to $33.06 in 2023 (two cents less than the $33.08 listed in the proposed rule). Other policies finalized in the rule include:

• Adopting coding/documentation changes for E/M visits (including hospital inpatient, observation, emergency department, and more) that align with changes made by the AMA CPT Editorial Panel for January 1, 2023. This includes eliminated use of history and exam to determine code level, revised interpretive guidelines for levels of medical decision-making, and the choice of medical decision-making or time in determining code level.
• Delaying the split-shared visits policy until 2024. This policy will change the definition of the substantive portion as more than half the total time.
• Extending the time that telehealth services are temporarily included on the telehealth services list during the PHE but are not included on a Category I, II, or III basis for 151 days following the end of the PHE. Providers should continue to report telehealth services with modifier 95 during the PHE, but audio-only services should be reported with modifier 93 effective January 1, 2023.
• Making an exception to direct supervision requirements under “incident to” regulations allowing behavioral health services provided under general supervision of a physician or non-physician practitioner (NPP) when the services or supplies are provided by auxiliary personnel incident to the services of a physician or NPP.
• Codifying the reporting of modifier -JW for reporting wastage for all separately payable drugs with wastage from single use vials or single use packages effective January 1, 2023, and the reporting of modifier -JZ for reporting single use vials or packages with no discarded amount effective July 1, 2023, with editing beginning October 1, 2023.  Other issues were clarified in commentary.
• Codifying changes to coverage of certain dental care inextricably linked to and substantially related and integral to the clinical success of covered medical services. 

The rule is effective January 1, 2023. 

The outpatient prospective payment system (OPPS) final rule was also released.

CMS published the 2023 OPPS final rule. The rule finalizes updates to both OPPS and ambulatory surgical center (ASC) PPS payment rates by 3.8% for 2023, significantly higher than the proposed 2.7% increase in payment rates. 

Policies finalized in the rule include:

• 340B payment rate updates.
• Removing 11 services from the inpatient-only list, adding eight services to the inpatient-only list, and adding four services to the ASC covered procedures list.
• Continuing coverage for behavioral health services furnished remotely by hospital staff to beneficiaries in their homes beyond the end of the public health emergency (PHE) as long as the beneficiary receives an in-person service within six months prior to the first remote service and once every 12 months following that. 
• Adding facet joint injections and nerve destruction as an additional service that would require prior authorization, effective July 1, 2023, rather than the proposed date of March.
• Approving four of the eight applications for device pass-through payments for CY 2023.
• Finalizing changes to the supervision requirements for diagnostic services to allow non-physician practitioners to supervise diagnostic services within their scope of practice, similar to services provided under the physician fee schedule.

CMS is implementing a requirement from the Consolidated Appropriations Act of 2021 to establish REH as a new provider type. Critical access hospitals and certain rural hospitals may choose to convert to an REH and would be allowed to provide emergency department services, observation care, and certain outpatient medical and health services.