February 2001 Bulletin

Return to CPT 1991 E&M billing system

By Robert P. Nirschl, MD, MS

One of the most onerous of the ever-expanding regulatory governmental actions is the establishment of evaluation and management (E&M) documentation for physician office services. The stated purpose of these regulations as articulated by government is to control fraud and abuse. It is clear, however, that the collectivist goal of societal cost control is the real agenda. It should be noted that delivery of medical services is individual not collectivist, therefore constant irreconcilable conflict is the inevitable result.

The E&M codes assume greater oppressive persona with the confluence of a segment of the 1996 Kassebaum-Kennedy legislation which criminalizes any miscoding of medical services. Control of the criminalization process resides with the Health Care Financing Administration (HCFA) section of Medicare. HCFA, in fact, has been granted the power of police, judge and jury with an Inspector General (IG), that functions in a manner similar to that of the Internal Revenue Service (e.g., the accused is guilty until proven innocent).

Any objective review exposes these recent regulatory steps as both an ideological and punitive assault on both physicians and the delivery of medical services and has had a chilling and negative effect on the physician community. It is highly likely that the evolving demise in the quality and access of medical services for the Medicare population as currently observed by the medical community will accelerate as the full burden the E&M codes become manifest. As quality and access diminish, it is axiomatic that long-term costs both in patient medical outcomes and financial burden will increase.

It appears that HCFA and the government in general have decided that physicians are both overpaid for their services and have been committing unprecedented fraud and abuse. This is in spite of a report by HCFA’s IG that most physician errors in billing are primarily staff errors rather than fraud. It should be noted, dependent upon circumstances, that current physician Medicare fees are now approaching, have reached, or are below the level where the costs of delivering quality medical service exceed the payments received. This situation, when observed from the perspective of the practicing physician, is now resulting in altered medical service in both quality and access. Elderly and infirm Medicare patients who often require increased physician time and resources magnify this unfortunate trend.

A simple and satisfactory E&M billing system was in place until 1991. Indeed the AMA CPT code book (CPT1991) needed only four pages for E&M services. Physicians had no logistical difficulty with the system and in the computer age outlier billing practices could be easily detected. Indeed, today’s technology allows billing analysis with even greater ease.

The reasons and impetus for a more complex system is multifactorial but seems to reside primarily with the government (especially the U.S. Congress with mandate to HCFA) and a nonsurgeon segment of the physician community (e.g., family practice, internal medicine and pediatric physicians). The goals of Congress appear to be increased cost control and the concerns of the nonsurgeon physician groups appeared to be dissatisfaction with a perceived inequitable reimbursement system. The eventual new HCFA payment system was modeled on a program entitled Resource-Based Relative Scale (RBRVS) developed at the Harvard School of Public Health. The net effect of these Harvard research studies categorized both office-based E&M and surgical physicians’ services within the medical specialties on a common scale.

The May 1997 guidelines clearly state a key purpose is accurate and timely claims review and payment. A quantification system will indeed supply an identifiable system not only to third party payers, but also to physicians. Until this quantification model occurred, most physicians coded and billed on a qualitative basis and in many instances more likely undercoded rather than overcoded.

The E&M quantitative system precisely defines safe harbors and therefore defines a route for the legal expansion of medical services. Full coding of these expanded but irrelevant or minimal value services (as adjudged by most physicians) will result in increased service volume cost with little or no increase in medical value to the patient.

In addition, the current traditional Medicare format does not control the volume of patient visits. It is well known inside the medical community that a significant proportion of patients’ weekly medical visits are for emotional and social support reasons. This is especially true of the Medicare population. Physician time constraints in a quantitative system will severely limit important patient care functions known as "the art of medicine" and "‘good bedside manner." Limited value time per visit will subsequently increase rather than decrease the volume of patient visits. Response to increased visit volume can be anticipated to ultimately result in government imposed regulatory constraint (e.g., rationing) and decreased patient access to medical services. This process in fact has already been imposed and is especially evident in the Medicare HMO programs.

Finally, imposed quantitative approaches merely increase physician costs, in time and personnel (e.g., the costs to deliver services will increase rather than decrease). In my office practice, additional personnel are now dedicated to obtaining and performing the quantitative screens. This additional mandated necessity further closes the economic viability gap and quite candidly is resulting in necessary denial decisions concerning patient access.

The expanded and distractive quantitative checklist have little or no relationship to the qualitative value of medical services. The real goal of any patient visit is the resolution of presenting problems with an outcome that restores a quality of life to the level enjoyed prior to the onset of the presenting disease or injury. Checklists themselves add limited value to the cognitive thought processes so critical to outcomes and the success of the patient-doctor relationship.

There are certain basic premises in problem solving. In the surgical practice of medicine, it is clearly stated: "Identify the pathoanatomy, deal with it in an appropriate manner, avoid harm to the norm and leave before something bad happens." The government/HCFA approach has violated all of these principles. The fundamental problem is directly related to the 1965 design of the Medicare program. The availability of goods and services financed primarily by others (the children and grandchildren of Medicare beneficiaries), results in no constraint in the use of or oversight of the financing of these services by the recipient.

The solution to financing is not to destroy the patient-doctor relationship and shift the problem to physicians, but rather to restore the trust of the patient-doctor relationship. This requires true collaborative cooperation between patient and the treating physician with both financing and medical value oversight by the user of the service. In other words, to attain true value and cost control the empowerment must reside with the patient, not the government or corporate management companies. Appropriate patient financial obligation is critical to this effort. Implementation of a true insurance product (coverage for unanticipated events only) is also fundamental to the solution. To accomplish these core solutions a fundamental transformation of the Medicare model must occur.

While awaiting the broader brush of this Medicare reform, a return to the true purpose of the medical record, namely improve patient care, is in order. As an intended consequence the physician will be allowed to function in true qualitative capacity. Accomplishing this worthy goal requires a return of the qualitative E&M billing system such as the CPT 1991. All patients and practicing physicians would be foolish to passively accept anything less.

Robert P. Nirschl, MD, MS, is chairman, founding director, Nirschl Orthopedic and Sportsmedicine Clinic, Arlington, Va.

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