Medicare auditors are treating split or shared evaluation and management (E/M) visits as a documentation test, not a convenience billing option. When a physician and a nonphysician practitioner (NPP) in the same group each perform part of the same visit, 42 C.F.R. 415.140 and the Medicare Claims Processing Manual, Chapter 12, Section 30.6.18, control who gets paid. Get the substantive portion, the setting or the modifier wrong, and the claim is paid to the wrong practitioner, the exact fact pattern that draws a post-payment review.
What Counts as a Split or Shared Visit
A split (or shared) visit is an E/M visit in the facility setting that a physician and an NPP in the same group each perform in part, where either one could have billed the visit alone. Facility setting has a specific meaning under 42 C.F.R. 415.140: an institutional setting where incident-to billing under 42 C.F.R. 410.26(b)(1) is prohibited. It is why an office visit, where incident-to billing is allowed, cannot be billed as split or shared no matter how the physician and NPP divided the work.
The Substantive Portion Decides Who Bills
Medicare pays whichever practitioner performs the substantive portion of the visit. Beginning January 1, 2024, the Medicare Claims Processing Manual defines substantive portion as more than half of the total combined time, or a substantive part of the medical decision making. Critical care and prolonged services use time only. Time can only be counted once: when the physician and NPP see the patient together, the overlapping minutes count once toward the total, not twice for each practitioner.
Medicare pays the practitioner who performs the substantive portion of a split or shared visit, and that practitioner, not the group, signs and dates the record.
Settings That Qualify and the Ones That Do Not
Split or shared billing applies to hospital inpatient, hospital observation, hospital outpatient, emergency department and certain skilled nursing facility (SNF) E/M visits. Office visits and nursing facility visits are not billable as split or shared services, and neither is any SNF visit that Medicare's Conditions of Participation require a physician to perform alone. Commercial payers audit E/M visits under their own provider agreements, not Medicare's facility-setting rules, covered in Commercial Insurer Audits of Medical Practices: Contracts and Recoupment.
Documentation and the FS Modifier
Two records decide whether a split or shared claim survives review. The medical record must identify the physician and the NPP who performed the visit, and the practitioner who performed the substantive portion must sign and date it. The claim itself must carry modifier FS; modifier 52 for reduced services cannot substitute for it, and Medicare does not pay a partial E/M visit.
When a RAC finds that the record does not identify who performed the substantive portion, the contractor can apply extrapolation across the full claims lookback period, turning a handful of flagged visits into a recoupment demand that covers years of billing.
Documentation expectations also vary by Medicare Administrative Contractor, so check the local coverage determination, where one exists, for the services under review. Repeated findings can move exposure past recoupment, a path described in Corrective Action Plans After Medicare Revocation. Other high-volume Medicare audit targets carry their own documentation rules, covered in Diagnostic Imaging Medicare Audits.
Why Early Legal Counsel Is Critical
It is critical that physicians and physician practices promptly retain experienced healthcare defense counsel upon receiving a subpoena, audit notice, investigative request, or other government inquiry. Early legal intervention can protect the practice's rights, ensure appropriate responses to government requests, avoid inadvertent admissions, preserve relevant defenses, and allow counsel to communicate with investigators on the practice's behalf. Delaying legal representation can significantly affect the outcome of a matter and expose the practice to unnecessary risk.
How Health Law Alliance Can Help
Health Law Alliance represents providers in Medicare post-payment and prepayment review, including the extrapolated recoupment demands that follow an audit finding.
Health Law Alliance's attorneys have overseen 2,000+ audits and handled 5,000+ matters, with 25+ years of experience.
If your practice has received an audit notice involving split or shared visits, contact us today for a free consultation.
