Physician Billing During the COVID-19 Public Health Emergency: Ambiguities Abound

The COVID-19 public health emergency has brought significant changes to the way physicians provide patient care, from screening patients prior to entering the office to the widespread use of personal protective equipment to rapid implementation of telehealth as a substitute for in-person visits. But each new flexibility brought changes in the rules and regulations for billing the services. This article addresses the regulatory flexibilities and waivers associated with claims for services provided to Medicare fee-for-service patients.

Telehealth Flexibilities Begin

Prior to the public health emergency, telehealth services could be provided only to patients who were located in a rural clinic or via virtual check-ins using established codes with specific requirements. The first major regulatory flexibility occurred when the Office of Civil Rights announced an enforcement discretion on the HIPAA privacy regulations, allowing the use of non–HIPAA-compliant means for conducting visits. The CMS then used its waiver authority to allow physicians to provide telehealth visits with patients located at other locations, including their home. When first allowed, CMS specified in an FAQ issued on March 9, 2020, that these claims should be submitted with place of service 02, meaning they would be paid at a reduced rate compared with an in-office visit.

Then in the first Interim Final Rule CMS-1744-IFC, issued on March 31, 2020, CMS specified that the service should be billed with the place of service as if the visit was conducted in person, effective retroactively to the beginning of the public health emergency. On the office side, this allowed independent physicians to bill office visits with place of service 11 and employed physicians to bill with place of service 19 or 22. CMS also specified that these visits should be billed with the -95 modifier to indicate the service was not furnished in person.

Hospital Visits—Telehealth or Not?

This also created some confusion on coding visits for hospital care. Because of the shortage of personal protective equipment and the many unknowns about transmissibility of the SARS-CoV-2 virus, all providers did their best to avoid face-to-face contact with patients with COVID-19 or those patients under investigation for SARS-CoV-2 infection. Along with the Office of Civil Rights enforcement discretion, many hospital visits quickly moved to be technology-assisted, with the provider often outside the room communicating and “examining” the patient in the room via a tablet or smartphone. Although it would seem logical that such visits would be billed as telehealth using the -95 modifier, CMS specified that if the patient and the physician are both at the hospital, defined as on the hospital campus or within 250 yards of any main campus building, then the visit is considered a face-to-face visit and not telehealth and the -95 would not be used. Unlike with the relaxation of E/M code selection rules for office visits, however, to be described later in this article, the standard code selection rules would continue to apply. This limited most visit codes, especially initial visits, to be chosen based on time, because performing a comprehensive examination via remote technology was not feasible.

Office Visit Billing: Independent or Employed

Although the clarification on place of service for office visits provided clarity and great relief for independent physicians, it created new confusion for employed physician service billing. When an employed physician performs an office visit, two claims are generated. The professional service is billed with a professional service claim with place of service 19 if the visit was performed in an off-campus provider-based clinic or 22 if the visit was in an on-campus provider-based clinic. These claims pay at a lower rate than the professional service claim for an independent physician, because this payment is for the cognitive services of the physician and does not cover the office overhead, as does the independent physician’s payment. There is also a facility claim that is billed by the hospital for the use of the facility and the staff. When the visit is performed in person, the facility fee is billed with HCPCS code G0463.

Facility Fee or Originating Site Fee?

As with the place of services, the facility fee billing guidance during the public health emergency also underwent several changes. At first, CMS indicated that because the patient was not present in the clinic, telehealth visits were not eligible to have a facility fee billed. They then changed course. In an update to their interpretation of the waivers, CMS indicated that if the patient’s location for the visit, generally their home, is designated by the hospital as a temporary provider-based clinic location, then the facility charge may be billed with Q3014, the HCPCS code for telehealth originating site billing. Because this location is being designated as a new, temporary location, the fee would be billed with the -PN modifier. A temporary relocation of a location would allow the use of the -PO modifier, but there is no payment difference between suffixes –PO and –PN, so the extra work to do a relocation, including notifying CMS of every address and every service type, would have no financial benefit.

Although the use of Q3014, the originating site fee, provided some revenue for the hospital, it was less than an in-person visit billed with G0463. As a result, in July, CMS took another step to parity by allowing the facility fee to be billed as G0463. They did this by indicating that when an employed provider is located in a provider-based clinic and the patient is at a location that has been temporarily designated as a provider-based clinic, then that visit is not a telehealth visit, it is a technology-assisted visit where both the patient and the physician are located “in the clinic.” This designation also means that the professional fee is not billed with the -95 modifier, because it is not telehealth. When making this clarification, CMS stressed that the location of the physician is key. If the physician is at their desk in their office in the clinic, it is an “in-person” visit; if, however, they conduct the visit from home, it is a telehealth visit.

This distinction carries significant financial implications considering the volume of visits performed during the public health emergency by employed physicians. Unfortunately, it was not made until months after such visits had begun. That created a dilemma for such practices. Because the clarification was retroactive to the start of the public health emergency, could they go back and determine the physical location of the physician for each of these visits? If so, the claim could be adjusted to bill the G0463 instead of the Q3014.

Using Time: How Do You Count Minutes?

The other issue that was addressed by CMS was the rules for E/M code selection for telehealth visits. Although the code generally is based on the history, physical exam, and medical decision-making, with time used only when greater than 50% of the visit was spent on counseling and coordination of care, a non–face-to-face visit limited the ability to perform all elements of the physical examination. CMS therefore allowed the E/M code selection to be based on the total time spent on the visit on that calendar day or the medical decision-making. This was a significant concession in allowing not only face-to-face time but also preparation time and post-visit work time.

Then came the confusion. Because CMS allowed this concession only for telehealth visits, it meant that if an employed physician was located in the clinic and performed a visit with a patient whose home was designated as a temporary provider-based clinic and the HCPCS code G0463 was billed as a facility fee, then this visit was not a telehealth visit and the “relaxed” rules for use of time for E/M code selection did not apply and providers must use the old method. Because many of these visits occurred before CMS provided the clarification allowing G0463, if time was used, it is likely the physician simply indicated the total time spent on the visit that calendar day and did not break it down into pre-, during, and post-visit time so that the actual “face-to-face” time could be determined.

The -CS Modifier: When Does One Use It?

The public health emergency also brought with it federal laws such as the Families First Coronavirus Response Act. This Act specified that for services provided to Medicare patients, CMS would pay 100% of the approved payments for certain services related to testing for COVID-19 if the –CS modifier is attached to the line item. The initial impression was that if a Medicare patient was seen for evaluation of a possible COVID-19 infection, the office visit and all services provided at that visit would be subject to no copayment or deductible with 100% coverage. A close reading of the law itself revealed that this 100% coverage applied only to E/M services but not to other services such as imaging or diagnostic tests such as an electrocardiogram. Laboratory testing also is not included, but it already is paid at 100%. This differed from another provision of the Act that specified that all services, including diagnostic testing, provided to a patient with group or individual health insurance at a visit where the patient was being evaluated for possible COVID-19 must be covered at 100%.

It was not until September 1, 2020, that CMS released claims edits to the Medicare Administrative Contractors to limit the proper use of the –CS modifier to such E/M visit codes. As a result, it is thought that many physician claims were submitted for non-E/M services such as diagnostic testing and interpretation of imaging with the –CS modifier. These claims are therefore at risk for recoupment if such claims are audited. Fortunately, CMS recognized the ambiguity of the regulations and stated on a provider call that they did not anticipate routine audits on the use of the -CS but reserve the right to audit if they suspect fraud.

Although there is confusion about the proper place of service, correct modifier use, and method to properly count time for services provided to Medicare beneficiaries, that can become exponentially more complex with the myriad of rules used for visits provided to patients with commercial, Medicaid, and Medicare Advantage plans, each of which has established their own rules. It seems for more than one reason many will be glad to see the end of the COVID-19 pandemic.