Digital health expert Nathaniel Lacktman breaks down CMS’ proposed 2019 Physician Fee Schedule and Quality Payment Program, examining how it should boost support for services like remote patient management and store-and-forward telehealth.

By Eric Wicklund

– Earlier this month, the Centers for Medicare & Medicaid Services unveiled its proposed 2019 Medicare Physician Fee Schedule and Quality Payment Program, with several amendments designed to boost remote patient monitoring and telehealth programs through improved reimbursements.

Reaction so far – public comments are due back to CMS by September 10 and a final ruling is expected in November – has been positive from connected health advocates. They include Nathaniel Lacktman, a partner and healthcare lawyer with Foley & Lardner LLP, who chairs the firm’s Telemedicine Industry Team and co-chairs its Digital Health Work Group.

mHealthIntelligence recently sat down with Lacktman (virtually, of course) to discuss how these proposals would make telehealth and mHealth more enticing.

Q. What are the biggest takeaways from the proposed 2019 Medicare Physician Fee Schedule and Quality Payment Program with regard to remote patient monitoring (Chronic Care Remote Physiologic Monitoring)?

A. CMS introduced three new RPM codes, retitled “Chronic Care Remote Physiologic Monitoring,” which largely adopt the new codes created by the American Medical Association in 2017.  The codes (CPT 990X0, 990X1, and 994X9) are intended to better reflect how RPM services can be delivered to patients.

Even before these new codes were proposed, separate billing Medicare for RPM has been allowed using CPT 99091, defined as:  “Collection and interpretation of physiologic data (e.g., ECG, blood pressure, glucose monitoring) digitally stored and/or transmitted by the patient and/or caregiver to the physician or other qualified health care professional, qualified by education, training, licensure/regulation (where applicable) requiring a minimum of 30 minutes of time.”

The three biggest takeaways from the new RPM codes that differ from the current CPT 99091 are as follows:

  1. Less treatment time required to qualify for reimbursement. CPT 99091 requires at least 30 minutes per 30-day period, whereas CPT 994X9 requires only 20 minutes per calendar month.  The new code is much easier to track on a monthly basis, and requires 33 percent less time.
  2. Separate payment for initial set-up and patient education. CPT 99091 does not offer additional reimbursement for the time spent setting up the RPM equipment or educating the patient on its use.  The new codes offer separate reimbursement for the work associated with onboarding a new patient, setting up the RPM equipment and training the patient on same. This is a very helpful move to further incentivize providers to start using these technologies with their patients. In addition, this separate payment is different from how Medicare reimburses Durable Medical Equipment (DME) suppliers (e.g., CPAP, oxygen, etc.). CMS requires the DME supplier to set up the equipment at the patient’s home and educate the patient on how to use the equipment, but does not offer separate payment for that work.
  3. Clinical staff allowed. CPT 99091 is limited only to “physicians and qualified health care professionals” and does not expressly allow the RPM service to be delivered by clinical staff (e.g., RNs, medical assistants, etc.). This means the physician or qualified health care professional must perform the full 30 minutes per 30-day period, which is a lot of time for these highly trained professionals. For some providers, this is too resource-intensive to justify the $58.68 per month reimbursement rate.  The new code allows RPM services to be performed by clinical staff.

The only manner in which a Medicare provider could potentially use clinical staff for CPT 99091 is by complying with all the requirements for “incident to” billing, which – among other things – requires that auxiliary personnel be under the direct supervision of the physician. Under Medicare rules, direct supervision means the physician must be present in the office suite and immediately available to provide assistance and direction throughout the time the auxiliary personnel is performing services.

Most RPM services are best provided via general supervision, which does not require the physician and auxiliary personnel to be in the same building at the same time, and the physician could instead exert general supervision via telemedicine. This is a huge difference in operations and business models, but in order for CMS to make these new RPM codes work in the real world, it is near-essential that CMS allow RPM to be delivered “incident to” under general supervision.

Q. Will this be enough to prompt healthcare providers to launch RPM programs?

A. I believe it will. This is particularly so for entrepreneurs and start-ups who would like to create companies helping Medicare providers deliver RPM services to patients, just like we have seen with Chronic Care Management (CCM) companies. This is because the new codes expressly allow the use of “clinical staff” to help fulfill part of the 20 minutes per month. Current CMS guidance on CCM services expressly contemplates and allows third party companies to contract with Medicare providers to help deliver CCM services. In order to further enable that, CMS created an exception allowing a Medicare provider to bill CCM services as “incident to” under general supervision. Normally, most services billed incident to must be provided under the direct supervision of the provider.

Q. What should healthcare providers be doing now to prepare for these new opportunities?

A. The first thing is to take the time to truly understand, with precision, the billing and supervision rules fundamental to a compliant RPM service model. They should not focus too much on the technology and business development until they are confident the model they are “selling” or delivering does, in fact, comply with Medicare billing requirements. Otherwise, they could face significant overpayment liability if the Medicare contractor conducts a post-payment audit.

Second, they should take time to develop a model business-to-business RPM contract, whether this is technology-only, support services-only or a combination of both.

Third, companies interested in RPM should read the proposed rule and consider submitting comments to CMS during this current open period, asking CMS to allow the new RPM codes to be delivered incident to under general supervision, just like CMS did for Chronic Care Management. Do not wait until after the final rule is published, only to complain that CMS didn’t consider something important – you need to help CMS by informing them through the public comment process.

Fourth, companies currently offering CCM services should be particularly focused on expanding their business lines into RPM. Not only do CCM companies have current customers who can benefit from RPM services, the non-face-to-face technology is fairly similar. Moreover, CCM and RPM can both be separately billed for the same patient in the same month, allowing additional revenue. (Note: You cannot double count the minutes for CCM and RPM, so billing both would require at least 40 minutes – 20 minutes of CCM and 20 minutes of RPM – per month).

Q. With regard to new Virtual Care codes introduced by CMS, how will these new codes help providers?

A. CMS has proposed three new code sets for services to be covered under specific conditions:

  1. Virtual Check-Ins, officially titled “Brief Communication Technology-Based Service;”
  2. Asynchronous Images and Video, officially titled “Remote Evaluation of Pre-Recorded Patient Information;” and
  3. Peer-to-Peer Internet Consults, officially titled “Interprofessional Internet Consultation.”

None of these codes require the use of interactive audio-video technology, nor do they require the patient be located in a rural area or a specific qualifying originating site. Moreover, CMS’ proposal to cover asynchronous telemedicine and non-face-to-face services is a major recognition of the validity of asynchronous telemedicine (also known as store-and-forward medical care without the use of interactive audio-video or a face-to-face exam).

Asynchronous telemedicine is efficient and patient-centered and aligns with how many service providers deliver non-healthcare and online services today. CMS’ coverage of these services sends a strong message, both to medical boards and commercial health plans, that asynchronous telemedicine is an important and clinically-valid tool through which providers can deliver healthcare services.

Q. Does this mean we’ll see providers embracing more asynchronous technology, as opposed to real-time audio-visual services?

A. Yes. I am a firm believer that asynchronous telemedicine is the future, both from a convenience/satisfaction perspective and from a cost-savings perspective.

Consumers and providers alike have become increasingly comfortable using telemedicine technology to deliver health care services. Ten to 15 years ago, the debate focused on the need for an in-person exam vs. interactive audio-video. Five to 10 years ago, the debate shifted to audio-video vs. “interactive audio with store-and-forward.” Now, asynchronous telemedicine is simply the natural evolution of this growing comfort with delivering quality health care services through low cost, highly-convenient technology.

A growing number of states allow a valid doctor-patient relationship to be created via asynchronous telemedicine in a clinically-appropriate manner. We are seeing notable use of this technology not only in direct-to-consumer telemedicine, but also among hospitals and academic medical centers, who often refer to them as “eConsults” and have realized astonishingly high satisfaction ratings from patients and providers alike who use this technology.

With regard to cost savings and resource conservation, the sheer amount of time saved in scheduling, administrative management and physician minutes associated with asynchronous telemedicine outstrips not only in-person services but even interactive audio-video telemedicine services.

Q. What should providers do now to be ready to adopt this technology next year?

A. Providers should read the proposed rule and understand what these new virtual care codes will and will not accomplish. Then consider submitting comments to CMS during this current open period to make their voice heard.

Similarly, those providers who currently offer any asynchronous telemedicine services as a patient-pay, non-covered service (i.e., patient-liable) should carefully review their services and these new codes to determine whether they can continue to bill patients out-of-pocket, or if the services are covered by Medicare (i.e., provider-liable or separately reimburseable).

Q. Are there any concerns or potential missteps that providers should be wary of in embracing these new guidelines?

A. Some of the proposed codes can only be used with established patients, not new patients. But that might not be a bad thing for reimbursement purposes, as the low reimbursement rate for virtual check-ins reflects that it is not a substitute for a more thorough patient evaluation (via telemedicine or otherwise). Due to the code’s definition and low reimbursement rate, some practitioners may not even want this code to be used for more robust and time-intensive initial patient evaluations.

Moreover, there is no language in the code mandating that the requisite doctor-patient relationship be created via an in-person exam, rather than via telemedicine. That said, commenters should consider whether they agree with this limitation or if they want to suggest that CMS remove the restriction and allow providers to use this code for new patients. Asynchronous telemedicine providers, in particular, might want the flexibility to have this count as a covered service even for new patients, as more and more states allow the creation of a doctor-patient relationship via asynchronous telemedicine.

Some of the codes have frequency limitations unrelated to medical necessity. Providers have seen the frustration such frequency limits create (e.g., inpatient telehealth E/M covered only once every three days) and might not want CMS to impose any such arbitrary limits here.

Q. We also have two new telehealth codes for prolonged preventive services in the office or other outpatient setting – how will providers benefit from these codes?

A. These are a modest expansion of the current set of covered telehealth services, simply to account for those situations where the provider needs more time to deliver the care. These are helpful, but don’t represent a landmark change or expansion to telehealth services under Medicare.

More notable are the changes CMS declined to make this year, including declining (again) to cover initial inpatient hospital E/M services and declining to remove the frequency limitations on subsequent inpatient E/M services).

Q. We’re looking here at three specific sections within the proposed rule that ostensibly support the advancement of mHealth and telehealth. Are there are aspects of this rule that also address this industry?

A. A little “inside baseball” is how CMS will pay for these new codes. In order to remain budget neutral, CMS will slightly reduce the reimbursement rates associated with other in-person services. This reallocation of funds not only supports the virtual care services, but reflects the shifting policy priorities and recognition of value for the next generation of technology-enabled healthcare.

Q. Overall, is this what you’d expected from CMS, or has this surprised you in any way?

A. I was overjoyed to read the proposed rule. Providers seeking further validation of the administration’s attitude on telemedicine and virtual care need only read CMS’ explanation for its bold, new proposal: “We now recognize that advances in communication technology have changed patients’ and practitioners’ expectations regarding the quantity and quality of information that can be conveyed via communication technology. From the ubiquity of synchronous, audio/video applications to the increased use of patient-facing health portals, a broader range of services can be furnished by health care professionals via communication technology as compared to 20 years ago.”

Q. Based on this proposal, could we expect CMS to be more accepting of telehealth and mHealth in the future?

A. It saddens me when I hear telehealth advocates blame CMS for the scant coverage of telehealth services under Medicare. In my opinion, CMS has done everything within its authority to encourage providers to use these new technologies, and the only notable limitations remaining are statutory in nature. This means that only Congress has the power to significantly expand Medicare coverage of telehealth services (e.g., eliminating the rural geographic or originating site limitations) and would do so by amending the Social Security Act. Congress did just that earlier this year with regard to stroke and ESRD services.

We may see more from Congress, but in the interim, CMS’ proposed rule is a landmark change allowing providers to much more meaningfully use new technologies when delivering medical care. By including new payment codes for remote patient monitoring, virtual check-ins, asynchronous image and video review and peer-to-peer consultations, the proposed rule exemplifies CMS’ renewed vision and desire to bring the Medicare program into the future of clinically-valid telemedicine services.

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