Recent CMS Rule Changes to Impact Physicians

By  Lynda M. Johnson, Timothy C. Ezell
Published in Arkansas Medical News (November/December)

On November 1, 2018, the Centers for Medicare and Medicaid Services finalized the 2019 Physician Fee Schedule and the Quality Pay­ment Program rules (2019 Rules). 

A couple of the stated goals of the 2019 Rules are: (1) to provide much-needed relief to providers from paperwork/documentation requirements; and (2) to modernize Medicare payment policies in order to facilitate and promote more wide-ranging access to virtual care.

Many parts of the 2019 Rules will become effective on January 1, 2019. There are delayed effective dates for other parts, as discussed in this update. The 2019 Rules are in excess of 2,000 pages. The purpose of this update is to provide highlights of a few provisions of the 2019 Rules that providers may be the most interested in.

Evaluation and Management Services; Billing and Coding

Coding and documentation requirements for “evaluation and management,” or E/M services are material (and sometimes frustrating) considerations for a substantial majority of physi­cian practices. Correct coding of and record keeping for E/M services has been the source of much frustration for physi­cians over the years. Many CMS overpayment recoveries are based on the alleged incorrect coding and billing for E/M ser­vices (i.e., the physician billed a level 4, and CMS alleges that the physician should have billed a level 2 E/M code instead).

Historically, billing and coding for E/M services has been in­herently subjective in nature. Another complicating factor of coding E/M services is that there are two different sets of guidelines possibly applicable to E/M coding and billing; the 1995 and the 1997 E/M documentation guidelines.

For 2019 and 2020, CMS will continue several of the current facets of E/M billing/coding (described above). However, ef­fective January 1, 2019, the following changes will be effective:

  • For established patients, when information is already con­tained in the medical record, practitioners will not be required to record again the defined list of required elements for each visit, if there is evidence that the practitioner reviewed the pre­vious information already included in the record and updated it, as needed. This will allow practitioners to focus documenta­tion efforts more acutely on conditions that have changed.
  • For established patients, practitioners will not be required to enter again in the medical record information regarding the chief complaint and history, if those matters have already been entered by staff. The practitioner must indicate that he/she verified this information for the applicable visit being billed.
  • Broader (and more material) changes will become effective beginning in 2021. These ad­ditional changes include:
  • Less payment variation for E/M levels. This will be accomplished by paying a single rate for E/M visit levels 2 through 4. Level 5 visits will remain possible if applicable reimburse­ment criteria are met.
  • Practitioners will be able to document E/M visits (levels 2 through 5) using medical deci­sion-making or time spent with patient, instead of using the 1995 or 1997 E/M guidelines that have been applicable for years. Practitioners will also have the option to continue to use the current guidelines; so no change is required if a practitioner desires to continue to practice as he/she historically has.

Payment for Communication / Technology Services

CMS will pay for two different sets of physician services requiring use of communication technology.

The first category of services may be described as brief communication technology-based services. The applicable HCPCS code will be G2012. One example of this would be implementation of a virtual check-in service.

The second category of services may be described as a remote evaluation of video (or other image) from an established patient. The applicable HCPCS code will be G2010.

A primary objective of these new payment methodologies is to allow a practitioner to be reimbursed for providing services in order to determine whether a patient visit is needed. If it works as planned, these measures would ideally promote fewer unnecessary visits.


The success or failure of these measures will be in the practical implementation of such over the next few years. Almost certainly, the measures will have to be tweaked and improved over time.

The information provided above is created by the attorneys in the Healthcare Practice Group at Friday, Eldredge & Clark, LLP. This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Healthcare Attorneys.

Lynda M. Johnson has practiced in the health law area since 1986, representing a wide variety of healthcare providers including hospitals, physicians, physician groups, nursing homes, and home health agencies. Recently, her practice has focused on the representation of hospitals and physicians in HIPAA compliance efforts and other areas of regulatory compliance. Her practice also includes issues involving Stark I and II and Anti-Kickback compliance, Medicare/Medicaid reimbursement, corporate compliance issues, physician and hospital organization issues, managed care, healthcare and hospital law, long-term care and home health.

Timothy Ezell practices primarily in the area of healthcare law, representing hospitals, physician groups and other medical service providers in various corporate and compliance matters. His experience covers matters relating to HIPAA, Stark, fraud and abuse, anti-kickback, EMTALA, Medicare reimbursement, compliance, joint ventures, provider sales and acquisitions, medical staff bylaws and credentialing issues.