The Latest on E/M from the DOJ and CMS

The Department of Justice (DOJ) recently released a settlement of $750,000 with a provider practice for allegations of violating the False Claims Act (FCA). The allegations were directly related to up-coding of evaluation and management (E/M) services.  E/M up-coding has been a long standing risk area identified by CMS and the OIG.

We expect these types of settlements will increase as Medicare and other payers are ramping up their audits of E/M services. Specifically, providers can expect audits of their outpatient/office E/M services rendered in 2021 subject to the new guidelines.  

CMS has quietly removed the Claims Processing Manual instructions for billing split/shared E/M and critical care services.  The removal of these manual provisions is in response to a petition.  CMS indicated they will be addressing these rules through the formal rule making process.  CMS will limit reviews of split/shared E/M and critical services to applicable statutory and regulatory requirements until a final rule is published. 

CMS has re-issued the E/M Services Guide.  The guide has been updated for 2021.  Of note, the guide still indicates documentation of components of the PFSH is still required for new and established outpatient office encounters.

We recommend providers conduct auditing and monitoring of their E/M services, including data analysis and documentation reviews.  We have noted shifts in higher E/M levels for many providers.  While these shifts, in many cases, may be appropriate, you will want to ensure the documentation supports the higher levels.  We have also noted, as expected, providers are struggling with applying the correct set of documentation guidelines in the hospital environment causing a significant number of services to be down-coded.

We also recommend you consult with legal counsel regarding the split/shared changes for Medicare encounters and how these changes may impact your billing practices.

We recommend you provide education and training to your coding and clinical staff regarding these changes and any pertinent findings from your auditing and monitoring efforts.

HBE’s team of coding and compliance experts is available to conduct documentation and coding compliance reviews, review and development of policies and procedures, as well as providing customized education and training for your administrative, coding and clinical staff. 

To view the DOJ release, go to:

To view the CMS transmittal, go to:

To view the E/M Services Guide, go to:

DISCLAIMER:  This newsletter contains only summary information and highlights; it should be read in conjunction with the full article or document provided as a link.  Any advice or recommendations are general and specific questions should be directed to professional counsel.

Recent Posts






Ready to discuss your project with us?