Medical/Legal Impact of 2021 E&M Changes


Without detailed documentation, providers may face an uphill battle in defending themselves from quality audits and even malpractice issues.

Up until 2021, at least for the prior two decades, coders and clinicians relied upon the established Evaluation and Management (E&M) guidelines to determine which E&M code was appropriate for each specific encounter. The 1995 guidelines consisted of 16 pages, the 1997 guidelines consisted of 45 pages, and to make matters even more confusing, a provider was able to choose which set of guidelines they wanted to follow. Many practices, using computer algorithms, would enter the documentation into a software application, and it would produce a code based on both guidelines – and the practice would pick whichever one was more favorable, with respect to payment. And while the two sets of guidelines differed quite significantly in some areas, there was a common aspect to how the code was selected. In each set, in addition to the chief complaint, there were three key components:

  1. History;
  2. Physical exam; and
  3. Medical decision-making (MDM).

Each of these was determined based upon a specific grid pattern, and the grid was based on some quantitative assessment of findings. History, for example, was broken up into three sub-components:

  1. History of present illness (HPI);
  2. Review of systems (ROS); and
  3. Past family and/or social history (PFSH).

Each of these could be assigned a specific descriptor. Again, as an example, HPI might be assigned a descriptor of either brief or extended. ROS could be problem pertinent, extended, or complete, and PFSH could be assigned as either pertinent or complete.

But wait, there’s more. After filling in the grid with these descriptors, a type of history had to be calculated, so to speak, and there were four types:

  1. Problem-focused;
  2. Expanded problem-focused;
  3. Detailed; and
  4. Comprehensive.

Here’s the kicker: when you have completed this complex array of “diagnosotology,” you have only listed one of the three key components. In order to effect the selection of a code, you also need to do the same thing with physical exam and medical decision-making, each having more moving parts than history. A new visit is selected based on the lowest of the three key components (in yet another decision grid), and an established visit is selected based on the lowest of two of the three components. Some number of years ago, I analyzed the steps and iterations involved in selecting a single office visit code, and determined that there were well in excess of 1,500 decision points involved: a herculean task by any measure. In fact, I am of the opinion that being a coder requires a more diversified skill set that being a statistician.

For years, providers complained to the Centers for Medicare & Medicaid Services (CMS) that the guidelines were inconsistently applied, improperly interpreted, and simply too complex (meaning too many moving parts) for their purpose, which was to select a single code to describe a provider/patient encounter. For years, CMS agreed, and said they were looking into it. And lo and behold, 2021 brought a change: maybe not the change that some were hoping for, but a change nonetheless, and that change did in fact result in a significant reduction in the amount of documentation required and the decision points encountered to select a visit code (or at least an office visit code, as that was the focus of this set of changes).

The new guidelines depend upon either one of two criteria: medical decision-making or total time for the encounter. And for the record, total time was also a valid selection criterion prior to 2021. Since I am not a coder, I am not going to get into the details of how the medical decision-making component works; however, I am concerned about the change in coding patterns (which I reported on in my prior article) and a fall-off in what I have always believed was important documentation in the medical record. In general, I found that there was a pretty significant increase in cpt code 99204 and cpt code 99205 encounters, as well as 99215 encounters. And even more surprising, I saw a very significant increase in cpt code 99212 encounters.

A big concern I have now is what appears to be some apathy with respect to documenting the history and physical exam in the chart. I imagine that providers are still asking those history questions and performing a physical exam, just not documenting that these were done. And the consequence is that, particularly with potential medical-legal issues, it will be difficult to go back and say “well, yeah, I did that, but I just didn’t write it down.” My lawyer friends (yes, I have lawyer friends!) had told me that, while not necessarily scoring those categories anymore, detailed documentation is still important. So I did a study. I looked at 10,072 reviews for office visits that were performed by our clients and entered into our system, and here is what I found.

For all of those 10,072 chart reviews, MDM was the driver for selecting the office visit code. Of these, I found that only 3.4 percent (341) also documented the physical exam and 6.8 percent (678) also documented the history. Maybe this is just a reporting issue, meaning that there was at least some documentation in the chart, but it wasn’t reported in our AuditTrakker® system. I can’t be totally sure, but even in the most conservative light, I would have expected a lot more than that. In fact, in some 50 cases, the auditor reported that both time and MDM were reported.

I can’t really say what the long-term consequences may be as a result of this, but I do know that without detailed documentation, providers may face an uphill battle in defending themselves from quality audits and even malpractice issues. And the reason we are facing this problem is that detailed documentation of history and exam pretty much defeat the purpose of the burden reduction anticipated with the new guidelines. In essence, it would be the same amount of work as before, rendering the purpose of the new guidelines moot.

At this point, I think all we can do is wait it out and see where this goes. I agree with Mary Pierce, a four-time Grand Slam tennis champion, who said: “sometimes things aren’t clear right away. That’s where you need to be patient and persevere and see where things lead.”

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