CMS E&M FAQ is likely to generate more questions than answers.

Since the release by the Centers for Medicare & Medicaid Services (CMS) of the 2019 Medicare Physician Fee Schedule (MPFS) Final Rule, many of us have been scurrying around trying to make sense of two evaluation and management (E&M) updates for 2019 that will have the most impact on documentation, one of these marked by vague language regarding the recording of history documentation.

CMS held a conference call regarding the Final Rule not long after its release, and agency representatives were inundated with questions and made a commitment to release a FAQ to help clarify their intent. The FAQ was released, but the language fell far short of clearing up the confusion. We actually found that the FAQ contradicts itself at some points, along with including some wording that could lead to misinterpretations.

Let’s start by reviewing the exact wording of the Final Rule:

Response: We are finalizing our proposal that, effective Jan. 1, 2019, for new and established patients for E&M office/outpatient visits, practitioners need not re-enter in the medical record information on the patient’s chief complaint and history that has already been entered by ancillary staff or the beneficiary. The practitioner may simply indicate in the medical record that he or she reviewed and verified this information. We note that this policy to simplify and reduce redundancy in documentation is optional for practitioners, and they may choose to continue the current process of entering, re-entering and bringing forward information (83 FR 35838). The option to continue current documentation processes may be particularly important for practitioners who lack time to adjust workflows, templates, and other aspects of their work by Jan. 1, 2019.

In this statement, note that it cites the” patient’s chief complaint and history that has already been entered by ancillary staff or the beneficiary.” This refers to the history as a whole element and does not define inclusion or exclusion of any particular component included in history, such as history of present illness (HPI), review of systems (ROS), or past family social history (PFSH). This prompted a swarm of questions to CMS requesting clarification as to whether it would now mean that ancillary staff could also obtain and record the HPI on behalf of the performing provider.

This would represent a stark change to the current stance of most every MAC (Medicare Administrative Contractor). Most have posted guidance that HPI is considered the work of the provider of the encounter because it requires “clinical skill” to gather this information from the patient and record it in the documentation. For example, NGS Medicare’s Policy Education Topics Question 26 reads:

Q: Is it acceptable for ancillary staff to gather HPI information and enter into the EHR (electronic health record) office note, so that the doctor can come along after to review and edit it, essentially making it his own?

A: Only the performing provider may elicit and document the HPI, since this requires defined clinical skill. (Updated 6/9/2017)

So imagine the confusion this creates, because the CMS Final Rule change would indicate that stating on Dec. 31,2018, HPI requires clinical skill, but come Jan. 1, 2019, it no longer does, and to top that, even the patients themselves could record the information. Well, at least ancillary staff members typically have some clinical skills, but does our average patient?

The 1995 and 1997 Documentation Guidelines have always been very specific to indicate that ancillary staff and even the patient may document the review of systems or past family social history, but they never addressed specifically the chief complaint (CC) or the history of present illness, which is why many MACs have provided clarifying guidance.

Due to the overwhelming requests for clarification, CMS released a follow-up FAQ on Nov. 26, 2018. It is prudent to break their statement down portion by portion to try to understand this guidance:

The CY 2019 PFS final rule expanded current policy for office/outpatient E&M visits starting Jan. 1, 2019 to provide that any part of the chief complaint (CC) or history that is recorded in the medical record by ancillary staff or the beneficiary does not need to be re-documented by the billing practitioner. Instead, when the information is already documented, the billing practitioner can review the information, update or supplement it as necessary, and indicate in the medical record that he or she has done so. This is an optional approach for the billing practitioner and applies to the chief complaint (CC) and any other part of the history: History of Present Illness (HPI), Past Family Social History (PFSH), or Review of Systems (ROS) for new and established office/outpatient E&M visits. (Bold emphasis my own)

The beginning of the statement is merely a restatement of the Final rule, but in the bolded portion of the end of the passage, a clarification begins. It seems to very specifically state that they are now updating policy to allow ancillary staff or the beneficiary to document the HPI of an office-based E&M encounter. This seems pretty straightforward if you don’t finish reading the guidance:

To clarify terminology, we are using the term “history” broadly, in the same way that the 1995 and 1997 E&M documentation guidelines use this term in describing the CC, ROS, and PFSH as “components of history that can be listed separately or included in the description of HPI.”

Note the bolded section in the above excerpt. They go back to the wording in the 1995 & 1997 Documentation Guidelines as a clarification, but this specifically never addresses HPI. The rest of that statement could also have a double meaning. Most interpret it as meaning they are merely adding HPI to the list of history components, but read it again. It indicates that the three original components may be listed separately or included in the HPI. So are they referring to encounters in which the HPI is a collection pit of all history components and advising that this would be acceptable, or are they truly updating the intent of Documentation Guidelines published guidance to include HPI?

Well, we still aren’t sure, because the next excerpt makes the matter even muddier:

This policy does not address (and we believe never has addressed) who can independently take/perform histories or what part(s) of history they can take, but rather addresses who can document information included in a history and what supplemental documentation should be provided by the billing practitioner if someone else has already recorded the information in the medical record.

If you didn’t read the full FAQ, you may have missed the true intent behind the 2019 finalization. They are not defining who can perform the information-gathering process of the HPI, but rather they are updating the documentation of the information.

Therefore, we can surmise that really, this update is not much of an update at all.

Why? Because the MACs’ published guidance says the work of the HPI requires clinical skill by the provider of the encounter; in other words, only the MD, DO, NP, PA, etc… can do the work of the HPI. But the Final Rule says anyone can document it.

Therefore, our official interpretation regarding Work versus Documentation consists of the following:

Work = Clinical skill is required of the provider of record for each individual encounter

Documentation = Can be performed by anyone, even the patient

CMS is now saying ancillary staff could document HPI, but if they cannot do the work of the HPI, then when would they actually be documenting only? The only scenario I can come up with is when ancillary staff are scribing, and that is no change to guidelines.

To date, I have been unable to find a MAC that has provided additional interpretive guidance. My suggestion is this: before you change the way HPI is being performed and documented in your practice, wait to see if we receive any MAC advice within the first month or so of 2019.

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