Passing the test: How to meet
  Medicare’s teaching physician
  billing compliance rules

July 2005
Feature Story

Medicare’s expanded compliance rules
Are you a ’teaching physican’?
But residents never sign my reports....
Nuances for reporting the GC modifier
Nuances for reporting an attestation
Key definitions and added nuances
Conclusion

Teaching physicians are subject to two Medicare compliance rules that don’t plague their nonteaching brethren. In particular, they must (1) append a unique "teaching physician" modifier to their CPT procedure codes on claims to Medicare, and (2) literally attest in each and every medical report to having met the program’s teaching physician compliance rules.

Several nuances affect compliance, and they’re not universally well understood. For example, what level of "active involvement" by a resident makes the senior medical doctor a "teaching physician" in Medicare’s eyes? When does a "fellow" count as a "resident" instead of a "physician" in this context? What’s the "critical portion" of a fine needle aspiration, a bone marrow biopsy, a transfusion medicine service, or a microscopic tissue exam that must be supervised by a senior pathologist to bill a professional fee? If residents don’t sign your final reports, can you ignore Medicare’s teaching physician rules altogether?

This article explains the basic compliance parameters that control claim filing and medical reporting by pathologists who train residents as an integral part of their daily patient care duties. It focuses on the key compliance nuances that tend to trip up practitioners or cause them to be exposed to greater audit risk than is generally acceptable. Specific suggestions and examples are provided so you can quickly and effectively plug the holes, if any, in your internal policies and practices.

Medicare’s expanded compliance rules

In general, patient care services by interns, residents, and fellows that fall within the scope of their training program are covered by Medicare as hospital Part A services, not as separately billable physician Part B services.¹ However, the Medicare carrier will pay a separate charge to a "teaching physician," if he or she is "physically present" to supervise the "critical portion" of the patient care service by an intern, resident, or fellow. Medicare’s teaching physician rules stipulate when the program does and doesn’t pay a physician’s charge for resident-performed patient care services, in addition to the amount that’s payable to a hospital.

The fundamental teaching physician rules are set forth in section 415 of the Code of Federal Regulations (Part 42). In general, they provide that, if a resident participates in or performs a patient care service in a teaching hospital, Medicare Part B physician fee schedule payment is made "if [a] teaching physician is present during the key portion of [the patient care] service or procedure for which payment is sought," but only if that presence is documented in the patient’s medical record.²

Radiologists, pathologists, and other physicians who interpret diagnostic tests receive special mention—but not special treatment per se—in the regulations. Part B payment is permitted "for the interpretation of diagnostic radiology and other diagnostic tests [like tissue exams] if the interpretation is performed or reviewed by a physician other than a resident."³ However, the patient’s medical record (for example, a pathology report) "must indicate that the physician personally performed the interpretation or reviewed the resident’s interpretation with the resident."⁴

The Centers for Medicare and Medicaid Services, the federal agency that administers the Medicare program, directly or through its predecessor agency, the Health Care Financing Administration, has interpreted the regulations to impose two compliance obligations on teaching physicians that don’t apply to other practitioners. In particular, according to CMS, a teaching physician must:

1. Add a special modifier to his or her CPT/HCPCS codes. Section 4113(A) of the Medicare Carriers Manual directs teaching physicians to report procedure code modifier GC with any medical service that involves a resident as an active participant.⁵ By using the modifier, the teaching physician certifies that he or she was "present during the key portion of the service, and [was] immediately available during the other parts of the service." This requirement has been in place since Jan. 1, 1997.
2. Attest to being physically present for the service. CMS in §15016(A) of the Medicare Carriers Manual defines "documentation" for a teaching physician’s services to include a notation in the patient’s record regarding "the service furnished, the participation of the teaching physician in providing the service, and whether the teaching physician was physically present [to supervise the resident]." There’s an arguably conflicting sentence in §15016(C)(5) that appears at first glance to provide an "out" for radiologists, pathologists, and other physicians who interpret diagnostic tests. It basically says that if a resident doesn’t sign the interpretive report, Medicare assumes the senior physician personally performed the interpretation alone. This misleading sentence will be fully discussed and the ambiguity resolved in a moment.

There’s no question the GC modifier and the medical report attestation requirements are highly redundant. Nevertheless, when the facts warrant, you must fulfill both rules to be in compliance; simply adhering to one isn’t sufficient. Look at it this way: Medicare’s auditors have two chances to "get" you, but you’ve got only one chance to "get it right."

Are you a ’teaching physician’?

Knowing whether you’re a "teaching physician" in Medicare’s eyes is crucial, because the extra compliance rules apply only if you are. The mere fact that a resident is present when you examine slides doesn’t necessarily make you a "teaching physician," even if you impart wisdom to the resident as you diagnose specimens. Of course, it’s conceivable that you’re a "teaching physician" for some medical services, but not all.

Basically, Medicare says you’re a teaching physician if you "involve" residents in the medical services you render. The policy guidance from CMS, taken as a whole, suggests the involvement must be ongoing, active, and significant before the extended compliance rules apply. Looked at from the opposite angle, if residents usually involve themselves in your patient care work only in a passive way (more as observer than participant), Medicare doesn’t see you as a teaching physician. Two examples will help clarify the distinction.

• Teaching setting. Residents actively participate in the care and treatment of patients in most accredited teaching hospitals. In pathology, they microscopically examine slides for the surgical and cytology cases they’ve been assigned, and then they record their diagnostic impression for each case. The electronic or paper trail bears the signature or initials of the resident who’s developed the tentative diagnosis. The senior pathologist (teaching physician) later microscopically examines the slides in the presence of the resident, they discuss the case, and then the senior pathologist signs the diagnosis as his or her own, or modifies it before sending the electronic or manual paperwork to transcription for the final report.

This scenario is precisely what Medicare has in mind when it defines a teaching physician and talks about such a physician being "physically present" during the "key portion" of a medical procedure. Residents are enrolled in an accredited graduate medical education (GME) teaching program, and the services are conducted in an acknowledged teaching hospital under the direction and supervision of a physician who holds an appointment to the faculty of an academic medical department. Residents are involved in patient cases ongoing, and they participate in an active, significant way; for example, in pathology they proactively examine slides and formally record their interpretive judgment, which becomes part of the patient’s medical record upon acceptance or change by the senior physician.

In a situation like this, Medicare expects the procedure code on the CMS-1500 claim for the teaching physician’s medical service to incorporate the GC modifier to disclose that a resident was actively involved in the service. In addition, the medical report for the case must include an attestation by the teaching physician concisely explaining his or her role in the service vis-à-vis that of the resident.

• Nonteaching setting. Community hospitals sometimes affiliate with teaching medical centers, and in so doing, they invite residents to gain real-world experience by learning alongside members of the medical staff. However, the education provided in these settings isn’t hands-on (that is, it’s not "learning by doing") as it is in the teaching centers. Instead, the residents learn by observing the work of senior physicians and by listening as seniors explain what they’re doing, why they’re doing it, etc. A pathology resident might preview slides and make personal notes about the likely diagnosis, but the senior pathologist doesn’t really consider the resident’s thoughts when formulating his or her diagnosis for the case.

This is not a "teaching physician" situation, at least insofar as Medicare is concerned. While residents may receive academic credit for the time spent at the community hospital, the hospital itself doesn’t have an accredited teaching program. Similarly, while the senior physicians who work with residents may very well be competent educators in their own right, they’re not full-fledged faculty of a university or medical college.

Even more telling, the senior physicians, when working with residents, don’t change their fundamental approach to patient care compared with the times they’re not working with residents. For example, when diagnosing a specimen, the pathologist doesn’t consciously or regularly consider what a resident may have to say, except as may be necessary to answer a question. Also, the paperwork (electronic and otherwise) for the case won’t show a resident’s "footprint" in a way that suggests he or she "actively participated" in the patient’s care; a resident won’t be mentioned anywhere in the medical report for the case because he or she was merely an incidental observer of the work of the senior pathologist.

In a situation like this, Medicare doesn’t view the pathologist as a "teaching physician," so the GC modifier and medical report attestation requirements don’t apply.

Of course, life often doesn’t present such clear-cut fact situations as these. You and your attorney will want to consider Medicare’s full formal guidance before reaching a final decision on your compliance obligation as a teaching physician or group of such physicians. This is especially important considering the aforementioned ambiguous guidance aimed directly at pathologists and radiologists. Let’s now look carefully at that controversy.

But residents never sign my reports....

Ironically, the Medicare compliance instruction that comes closest to being unique to teaching pathologists is also the one that gives health law attorneys and physician consultants fits over CMS’ intentions, and the corresponding practical implications. The instruction comes from §15016(C)(5) of the Medicare Carriers Manual and is directed specifically to the "interpretation of diagnostic radiology and other diagnostic tests" and procedures. It states: "If the teaching physician’s signature is the only signature on the interpretation, Medicare assumes that he or she is indicating that he or she personally performed the interpretation."⁶

The importance of this sentence to academic departments of pathology accrues from the fact that most of them accommodate only the senior pathologist’s signature in medical reports; seldom does a resident’s name (or initials even) appear in the final report. Notwithstanding, logs, worksheets, internal consult and order forms, and other documents preparatory to the final report clearly bear the initials or signature of a resident. So here’s the conundrum: When does a diagnosis become an "interpretation" for Medicare purposes—at the time the resident makes the diagnosis for confirmation by the senior pathologist, or at the time it’s transcribed to the final report?

The most aggressive reading of this ambiguous sentence concludes that CMS policy waives application of federal law and regulation in relation to teaching pathologists who don’t disclose the identity of a resident in the final medical report. Proponents argue that neither the GC modifier nor the attestation requirement applies in this instance; in essence, they postulate that the content of one’s final medical report determines his or her status as a teaching physician, not the overall context, process, or provable facts. Conventional wisdom rejects this viewpoint, because it fundamentally runs contrary to the spirit and intent of the teaching physician provisions of the law, and, simply put, it’s "too good to be true."

A less aggressive take on the elusive meaning of the subject sentence is that it relieves pathologists, radiologists, and other "interpreting physicians" of an administrative burden (that is, the attestation), but doesn’t change anything so far as the GC modifier is concerned. In other words, this view holds that CMS offers these physicians a shortcut attestation method: Don’t mention a resident in your final report, and your signature alone will then be accepted as proof of your compliance with the "present during the critical portion of the service" rule. If true, this prescription means teaching pathologists don’t have to include a formal attestation in their final reports, but they still have to append the GC modifier to procedure codes on their claims.

Conventional wisdom holds that, while the second viewpoint is far less radical than the first, it still doesn’t "feel right" in the context of the overall teaching physician compliance objectives and instructions. For example, why would CMS put so much faith and trust in the signature of a radiologist or pathologist, but not so other physicians? Also, how would an auditor know that a pathologist wasn’t merely signing a resident’s interpretation, without actually looking through a microscope? And last, when CMS talks about the teaching physician’s signature being "the only signature on the interpretation," it may have more than just the final report in mind; for example, it may also be thinking about all the worksheets and internal forms that bear the signature or initials of a resident.

The sensible—albeit conservative—understanding of CMS’ intentions regarding this key but ambiguous sentence picks up where the last stated concern leaves off: It assumes CMS is referring to the totality of the case record, not just the final report. (This is consistent with the approach used by CMS with surgeons, internists, and the like, when it takes into account "the combined entries" of residents and senior physicians to "constitute the [entire] documentation for the service.")⁷ Following this logic, if all paperwork for a case shows that the teaching physician performed the patient service with no or only passive involvement by a resident, then his or her signature on the final report is all that’s needed; it’s not necessary to include an attestation in the report, nor is it appropriate to append the GC modifier to the procedure code(s). Conversely, if the preparatory paperwork for a case shows that a resident played an active role in developing the interpretation that was reviewed and accepted or modified by the senior pathologist, the final report must include an appropriate attestation and the GC modifier must be affixed to the procedure code(s), even though the resident isn’t identified anywhere in the final report itself. The College of American Pathologists appears to share this understanding of CMS’ equivocal language.⁸

You and your attorney need to carefully weigh the arguments and the limited evidence in support of the competing theories for whether an attestation is or isn’t required when residents aren’t named in pathology reports. When deliberating, also take three important practical considerations into account: (1) in matters of government policy, what at first blush looks like a loophole in reality is often a noose; (2) auditors know which hospitals have resident education programs, and they’re always on the lookout for claims that don’t match that environment; and (3) the capabilities of most lab reporting systems today are such that template attestations can be added to reports with relative ease at virtually no cost.

Nuances for reporting the GC modifier

Medicare requires modifier GC with CPT and HCPCS procedure codes to declare that a resident actively participated in the service, but that the senior physician in whose name the service is billed was "present during the key portion of the service, and [was] immediately available during the other parts of the service."⁹ If a resident wasn’t involved in the service, or was involved only in a passive way (for example, merely as an observer), you don’t need to report the GC modifier on the senior physician’s claim.

The GC modifier is appended to the applicable CPT or HCPCS procedure code in addition to any other modifier(s) that may apply. For example, teaching pathologists very frequently report modifiers 26 (professional component only) and GC together (for example, 8830526GC).

Accuracy and reliability of modifier reporting are enhanced the more the billing office and its computer are involved. This also minimizes the burden on physicians and residents. When setting up the GC modifier capture and reporting system, you need to take three distinct fact situations into account.

• For procedures that always involve residents in an active way under the direct supervision of a senior physician, it’s best to let the billing computer automatically add the GC modifier to the procedure code, when the account is for a Medicare beneficiary.
• The GC modifier shouldn’t be appended to the procedure code of services that never involve the active participation of a resident. A policy of reporting the GC modifier with all codes billed—knowing that residents have nothing to do with some—undermines your credibility.
• A mechanism to selectively add the GC modifier to the procedure code of each service that has no set pattern of active participation by residents must be established. There are very few procedures that fall into this category in most teaching settings, so it’s quite reasonable to ask teaching physicians to assume responsibility for adding the GC modifier to the procedure code they report to the billing office in these instances. For example, when a teaching physician performs a fine needle aspiration without imaging guidance by him- or herself, procedure code 10021 is ticked off on the charge ticket; when that service is performed by a resident under the direction of a teaching physician, procedure code 10021GC is checked instead. Again, selective reporting of the GC modifier in these situations is critical to your compliance and credibility with Medicare auditors.

In many jurisdictions, Medicare is the only payer that instructs teaching physicians to report the GC modifier when the circumstances warrant. Check with your state Medicaid agency and the managed care plans and private insurers with which you do business to see if they want you to use the GC (or some other) modifier when filing claims for services to their beneficiaries or insured persons.

Nuances for reporting an attestation

The second requirement teaching physicians must attend to when billing Medicare for services involving the active participation of residents is the attestation of compliance. The patient’s medical record (report) must provide clear evidence that the teaching physician was physically present to personally supervise the resident during the critical portion of the medical procedure for which the teaching physician seeks payment.

CMS doesn’t offer or prescribe specific attestation language for teaching physicians such as pathologists and radiologists who conduct their work primarily by a visualization technique. (That is, the physicians don’t commonly have physical contact with the patient. Their diagnosis is made by review and interpretation of a radiographic film, a stained tissue slide or smear, or an EKG strip that’s representative of some part of the patient’s body.) However, CMS is quite specific regarding the objective of the attestation: It’s to "indicate that [the teaching physician] personally reviewed the image [, slide, smear, etc.] and the resident’s interpretation and either [agreed] with [or edited] the findings."¹⁰ CMS also makes clear that merely countersigning the resident’s interpretation—without looking at the radiographic image, stained slide, smear, or whatever—isn’t a teaching physician function that’s payable from Medicare Part B trust funds.

The attestation language you develop for your medical reports should be concise and to the point. The information you want to convey depends in large part on the procedure under review. For example, for tissue slides and cytology smears, the main idea to get across is that the teaching pathologist personally examined the material and made or confirmed the reported diagnosis. Alternatively, when dealing with bone marrow biopsies, you want to confirm that the teaching physician personally directed the procedure as the resident performed it.

Following are several sample attestations adapted from the reports of client physicians. Attestations should appear in the main body of the final report, in obvious proximity to the signature or initials of the senior pathologist who supervised the major service that’s the subject of a particular attestation. Only one attestation is needed for all like-kind procedures covered by a medical report; for example, one statement will nicely handle multiple specimens for H&E light microscopy (with or without special stains as well), but a separate statement should be provided for your intraoperative consultation on frozen sections.

• Surgical pathology, final diagnosis: "As the senior physician, I attest that I: (i) examined the relevant preparation(s) for the specimen(s); and (ii) rendered or confirmed the diagnosis(es)."
• Surgical pathology, intraoperative consult: "I, the senior physician, attest that I: (i) examined the relevant preparation(s) for the specimen(s) while in the surgical suite or frozen section room; and (ii) rendered or confirmed the diagnosis(es)."
• Fine needle and other nongynecological cytology final diagnosis: "I, the senior physician, attest that I: (i) examined the described preparation(s) for the specimen(s); and (ii) rendered or confirmed the diagnosis(es)."
• Fine needle aspirate immediate study: "As the senior physician, I attest that I: (i) attended the fine needle procedure; (ii) immediately examined smears while the procedure was underway; and (iii) determined or confirmed the adequacy of the specimen(s)."
• Fine needle aspiration: "I, the senior physician, attest that I: (i) attended the fine needle aspiration procedure; (ii) directed and supervised the procedure; and (iii) was immediately available to further assist the resident/fellow before and after the procedure."
• Bone marrow aspiration and/ or biopsy: "As the senior physician, I attest that I: (i) attended the bone marrow aspiration and/or biopsy procedure(s); (ii) directed and supervised the procedure(s); and (iii) was immediately available to further assist the resident/fellow before and after the procedure(s)."
• Clinical pathology test interpretation: "As the senior physician, I attest that I: (i) examined the relevant preparation(s) and/or image for the specimen(s); and (ii) rendered or confirmed the interpretation(s)."
• Transfusion medicine/blood bank service: "I, the senior physician, attest that I: (i) reviewed patient clinical records if indicated; (ii) reviewed relevant lab test results; and (iii) rendered or confirmed the interpretation/treatment recommendation."

Specialty labs such as electron microscopy, flow cytometry, and cytogenetics should develop teaching physician attestations that uniquely characterize their internal process. The preceding samples will nonetheless serve as patterns; for example, the attestation statement for an electron microscopy lab very likely will be nearly identical to that shown for surgical pathology (final diagnosis). Note, however, that a unique attestation for any particular specialty lab is necessary only if: (1) residents or fellows actually participate in a material way in the diagnosis of cases within the specialty lab; and (2) the senior physician who interprets and reports results for the specialty lab is different than the senior physician who’s assigned to a particular case overall. The need for specialty lab specific attestation language commonly comes up only in very large operations that have a significant volume to justify a dedicated physician per specialty lab.

As earlier mentioned, you’ll regularly encounter situations where two or more attestations should appear in one medical report. For example, a renal pathology report might contain three different attestations. One would cover the work of renal pathologist No. 1 who, together with a resident, examined the biopsy under a grossing scope and rendered an intraoperative finding of "sufficient glomeruli"; the attestation would be of type "surgical pathology, intraoperative consult" displayed in the preceding list, and it would appear in the intraoperative consultation section of the medical report. One would cover the work of renal pathologist No. 2 who, together with a resident or fellow, examined the H&E light microscopy permanent section slides, the histologic special stains, and the immunofluorescence stains; the attestation would be of type "surgical pathology, final diagnosis" displayed in the preceding list, and would appear immediately below the second pathologist’s electronic signature. The third attestation would cover the work of the electron microscopy specialist (a physician) who, together with a resident, examined and reported on the ultra-thin sections; the attestation would be similar or identical to type "surgical pathology, final diagnosis" in the list, and it would appear immediately below the specialist’s electronic signature in the addendum or standalone report, whichever approach is used at that particular institution.

Another instance when as many as three different attestations might well appear in one medical report occurs with fine needle aspiration cases. Even though the same cytopathologist might supervise the three distinct case services—that is, fine needle aspiration, immediate assessment of specimen adequacy, and interpretation of the permanent smears—by a resident or fellow, the services are sufficiently unique from a place, time, and process perspective that individualized attestations are encouraged. The attestation for each major service should be juxtaposed to the senior physician’s signature or initials in the three distinct sections of the final report—that is, the report sections that segregate the aspiration from the rapid assessment consultation, and those two activities from the final interpretation. Sample wording for each of the three attestations is provided in the preceding list. You might be tempted to try to construct one attestation covering all three major services, but that’s not encouraged, for reasons explained next.

Some academic departments of pathology use an attestation template that purports to cover the work of multiple physicians on one case, the work of one physician on significantly different procedures (for example, bone marrow biopsy versus diagnostic evaluation of the biopsy), or both. The main problem with all-inclusive attestation templates is that either they’re lengthy and grammatically clumsy, or they’re so general that they lack sufficient precision. In the first instance, auditors might reasonably question the veracity of an attestation, which looks like so much "boilerplate" in the face of variable fact circumstances. In the second instance, auditors may not be willing to accept all the assumptions that have to be read into the general attestation to make it work in particular fact situations; for example, to say that "slides were examined" doesn’t put the teaching physician in the frozen section room. Another factor to consider when weighing the pros and cons of multiple statements as suggested above versus a single all-inclusive template is that, for the vast majority of cases, only one of the several statements will be invoked anyway; for example, more than 80 percent of surgical pathology cases don’t have an intraoperative consultation, so the "final diagnosis" version alone will suffice.

How you go about getting the right attestation statement posted to the right place in your medical reports under the right circumstances depends entirely on the functionality of the medical reporting software you use. Indeed, you may have to develop considerably different mechanisms for surgical/cytology cases versus clinical pathology and/or transfusion medicine cases. Most lab information systems today accommodate "macros" or "auto-text," or both, to greater or lesser extent, and you should make ample use of those features to avoid repetitive typing errors, omissions, and inefficiency. The three key things to strive for when designing your attestation reporting mechanism are (1) positioning each attestation in such a way that there can be no question about which teaching physician is taking responsibility for which medical service; (2) flexibility in attestation language, as suggested by the various samples provided earlier; and (3) credibility of reporting.

As stressed when discussing the GC modifier, credibility of reporting is important. An attestation shouldn’t be posted automatically, unless it’s true that, for a given class of specimens, a resident or fellow is always actively involved, under the supervision of a senior physician. An attestation shouldn’t be posted in conjunction with a medical service if: (1) the senior physician performed the service without a resident being present or while a resident merely observed; or (2) a resident or fellow performed the service, but a senior physician wasn’t present to supervise the critical portion of the procedure. In the last instance, Medicare Part B shouldn’t be billed.

It’s virtually impossible to know with certainty at the time medical reports are signed and released what payer or insurer (if any) will be billed for a particular patient’s care. Therefore, when designing your attestation system, the best idea is to simply post an attestation(s) to all reports that meet the resident or fellow active participation and senior physician supervision criteria. The billing computer or office staff will then apply the GC modifier only to claims that go to Medicare. The fact that this protocol causes you to "over document" your medical services to non-Medicare patients shouldn’t create an issue with anyone; I’ve never encountered nor heard of a Medicaid agency, managed care company, or private insurer challenging or questioning this practice.

Key definitions and added nuances

Key definitions and additional nuances that should be taken into account when managing and monitoring your compliance with Medicare’s teaching physician documentation and billing rules are listed here. Attention to these matters, when considered together with the preceding information and suggestions, will help ensure that any outside scrutiny of your billing practices will yield a favorable conclusion.

• Resident services not supervised. Unless a teaching physician is physically present to personally supervise the patient care services of a resident performed under the auspices of an accredited graduate medical education program, no party—not the teaching physician, faculty practice plan, hospital, or resident—may bill Medicare Part B for the services.
• Fellow as resident. A "fellow" who’s enrolled in and performing patient care services as part of a training course offered through a teaching hospital’s accredited graduate medical education program is treated the same as a "resident" for purposes of applying Medicare’s teaching physician coverage and payment rules.¹¹ Conversely, patient care services outside a physician’s fellowship course and those not sanctioned by a hospital’s GME program may be billed by or in the name of the fellow (when properly signed up with Medicare), without regard for Medicare’s teaching physician rules.
• Technical vs. professional component billing. Under usual circumstances, a hospital can bill its Medicare Part A fiscal intermediary for the technical component of a medical service performed by a resident or fellow, even though a teaching physician professional charge to Part B may not be allowed. For example, if a resident performs a bone marrow biopsy on a Medicare beneficiary without a teaching physician being present, the hospital can bill CPT code 38221 to the intermediary, but nobody can bill a charge to the carrier.
• Definition of "physically present." The teaching physician must be "physically present" to supervise a patient care service conducted by a resident, if he or she is going to bill Medicare for it. The phrase "physically present" in this context means "in the same room ... as the patient [or resident, depending on the medical service]."¹² Think "looking over the resident’s shoulder" (literally) as the measure of physical proximity, because, by analogy, Medicare says viewing an entire endoscopy procedure "through a monitor in another room does not meet the teaching physician presence requirement."¹³
• Definition of "key or critical portion." The teaching physician must supervise the "key or critical portion" (Medicare uses those adjectives interchangeably) of a patient care service by a resident to be entitled to bill for it. For the most part, Medicare relies on the teaching physician to make a bona fide determination of the "key or critical portion" of any given medical service. One exception is "minor procedures": Medicare says the teaching physician "must be present for the entire procedure" if it only takes a few minutes (five, for example). Another exception is an endoscopy procedure, which requires the teaching physician’s presence in the suite the entire time the scope is in the patient.¹⁴
• Prime examples from the world of pathology. Following are examples of how to apply the "physically present" and "key or critical portion" criteria to work situations commonly encountered by teaching pathologists.
• When an interpretation or diagnosis is based on the microscopic examination of slide-based material, the teaching pathologist must perform such an exam on the material to fulfill the "key or critical portion" criterion. This is true regardless of whether the preparation represents tissue, a cytologic or hematologic smear, or a body fluid such as spinal fluid. Each separately billable preparation must be separately examined by the teaching pathologist; for example, the lung biopsy frozen section and H&E slides, and the AFB special stain slide, must be microscopically examined by the teaching pathologist to bill codes 88331, 88305, and 88312 for the separate procedures. The "physically present" criterion means the teaching pathologist’s frozen section exam has to be conducted in the frozen section room, while the operative procedure is underway.
• The teaching pathologist must personally identify the gross specimen to bill an 88300 code for a "gross only" exam by a resident. This is usually accomplished by having the senior physician in charge of the grossing room on any given day walk through that area once or twice to verify that the material in each "gross only" tissue container is consistent with the gross description that’s been logged or dictated by the resident.
• Medicare certainly would consider fine needle aspirations, bone marrow biopsies, and bone marrow aspirations to be "minor procedures," or at least more akin to the usual endoscopy procedure than to a complicated surgery. Therefore, a teaching pathologist should attend the entire procedure by a resident or fellow, if he or she is going to bill for it. "Physically present" here means looking over the resident’s shoulder.
• A medical service such as an E/M (evaluation and management) consult or therapeutic apheresis always involves face-to-face patient contact. To bill a professional fee for such a service, the teaching pathologist must participate in or repeat the critical portion of the service, which must include an activity involving face-to-face time with the patient.¹⁵
• To bill a clinical pathology consultation, a transfusion medicine or physician blood bank service, or another clinical pathology service, the patient’s record must demonstrate that the teaching pathologist personally reviewed relevant portions of the chart (if indicated), all pertinent laboratory test results, or both, to confirm the medical finding of the resident.

Conclusion

Teaching pathologists are subject to more stringent and extensive medical report documentation and claim coding requirements than their nonteaching brethren. However, by adopting the policies and practices explained in this article, you should be able to manage the added tasks with nominal extra time, interference with patient reporting, or incremental expense. Adhering to these instructions and suggestions will also help minimize your billing compliance risks.

Notes and references

1. Section 415.160 of the Code of Federal Regulations (Part 42) provides that a teaching hospital can, under certain circumstances, elect to receive payment from its Medicare Part A fiscal intermediary for the medical and surgical patient care services of its graduate medical education residency teaching physicians, whether or not they’re actually employed by the hospital. When this arrangement is in effect, there’s no billing to the Medicare Part B carrier by anyone, so the "teaching physician" coverage rules don’t apply. This arrangement is seldom encountered in practice, so added attention isn’t given to it in this article.
2. 42 CFR §415.172(a) and (b).
3. 42 CFR §415.180(a).
4. 42 CFR §415.180(b).
5. Interestingly, the new Internet Only Manual system, and chapter 12 of the Medicare Claims Processing Manual (CMS IOM Pub. 100-4) in particular, doesn’t mention the GC modifier. However, there’s been no Change Request issued to rescind the §4113(A) instruction, the modifier is still active in the 2005 HCPCS table per the CMS Web site, and various other CMS documents continue to reference its use (see, for example, the Medicare Learning Network pamphlet Teaching Physician Services: Guidelines for Teaching Physicians and Residents, Sept. 2004, available on the CMS Web site). This appears to be another example of a paper-based to Internet-only manual transcription snafu; see "Coping with the errors in Medicare’s new Internet-only policy manuals" in the March 2005 issue of CAP TODAY for more information about this controversy.
6. As fate would have it, there’s no guidance in §100, chapter 12, of the new Medicare Claims Processing Manual (or any other Internet-only manual to my knowledge) that’s recognizable as a transcribed or clarified version of the "interpretation of ... radiology and other diagnostic tests" language in the Medicare Carriers Manual. (Section 100 covers teaching physicians.) One might assume CMS intentionally omitted anything comparable to the §15016(C)(5) verbiage to signify that there’s really no difference among radiologists, pathologists, and other clinicians so far as the teaching physician service documentation requirements are concerned. Alternatively—and, arguably, more likely—this may simply be another instance where the new guidance falls short of the old in terms of completeness, accuracy, and helpfulness. Either way, the void that’s opened up in Medicare’s latest policy manual doesn’t change the fundamental compliance concern we’re grappling with here.
7. See, for example, §15016(A)(8) and (C)(1).
8. On page 38 of its November 1998 Compliance Guidelines for Pathologists, the College advises that teaching pathologists should clearly and regularly state "on the pathology report ... that the specimen has been examined and the interpretation is agreed with or edited." Hence, the College advises ongoing inclusion of attestations in final pathology reports, even though it knows the senior physician’s signature is likely going to be the only one on those reports.
9. Medicare Carriers Manual,§4113(A).
10. Medicare Carriers Manual, §15016(C)(5)
11. Medicare Carriers Manual, §15016(A)(1).
12. Medicare Carriers Manual, §15016(A)(9).
13. Medicare Carriers Manual, §15016(C) (4)(c).
14. Medicare Carriers Manual, §15016 (A)(7), 15016(C)(4)(a)(3), and 15016(C) (4)(c).
15. Medicare’s rules for covering E/M services by residents have been relaxed a bit the past couple of years, to the point where the teaching physician no longer has to meet face-to-face with the patient in all instances. Notwithstanding, considering the skepticism that typically greets a pathologist’s E/M charge on a claim to Medicare and private insurers, it’s best that you strictly adhere to the old rules so as not to tempt extraordinary scrutiny and possible challenge.

Dennis Padget is president of DLPadget Enterprises Inc., a pathology business practices research and publishing firm in Simpsonville, Ky. The advice he provides in this article is his own. The CAP makes no representation regarding the efficacy of his advice, and no representation is implied by the appearance of this article in CAP TODAY.