In September we wrote about the Centers for Medicare & Medicaid Services (CMS) releasing its proposed 2021 Medicare Physician Fee Schedule. The proposed rule notably included several proposals to make permanent, extend, or transition out of COVID-19 flexibilities issued by the agency. This was especially true in the telehealth space. Other areas of interest included changes to evaluation and management codes and updates to the Quality Payment Program. Below we review a few comment letters submitted by major organizations on this proposed rule.


Before COVID-19, Medicare only covered certain services furnished via telehealth, including professional consultations, office medical visits, office psychiatry services, and any additional service specified by the HHS Secretary when furnished via an interactive telecommunications system (known collectively as the Medicare Telehealth List). The last category allows services to be added to the Medicare Telehealth List through the Physician Fee Schedule rulemaking process. In this year’s proposed rule, CMS intends to add several services to the Medicare Telehealth List on a permanent basis. CMS justifies this by arguing they are services that are similar to the professional consultations, office visits, and office psychiatry services that are already covered on the Medicare Telehealth List. In addition, CMS also extended several services on a temporary basis until the end of the calendar year in which the public health emergency (PHE) ends.

An important letter in this area came from the American Telemedicine Association (ATA). Not surprisingly, the ATA writes: “The ATA strongly supports increased access to telehealth services in the Medicare program in order to increase access to clinically and cost-effective care, particularly for underserved populations.”

Regarding permanent coverage of additional Category 1 codes, the ATA states: “CMS proposes to add nine codes that were temporarily covered during the COVID-19 PHE to the telehealth services list on a permanent basis (GPC1X,  90853, 96121, 99XXX, 99483, 99334, 99335, 99347, and 99348). The ATA supports adding these codes for group psychotherapy, neurobehavioral status exam, and evaluation and management (E/M). As CMS notes, home visits are allowed for patients with a substance use disorder or a co-occurring mental health condition under Social Security Act Section 1834(m) as amended by the SUPPORT for Patients and Communities Act. The ATA supports the addition of home and domiciliary visits for patients with substance use disorder or a co-occurring mental health condition as Category 1 services.”

Similarly, the American Medical Association (AMA) urges CMS to: “continue and make permanent several telehealth services, and to seek authority to remove barriers to access based on geography and site of service. The AMA recommends that CMS continue to cover services that it began covering as telehealth services during the COVID-19 public health emergency (PHE) through the end of the year following the year in which the PHE ends to allow experience with delivery of these services via telehealth after the coronavirus is no longer a threat. Payment rates for telehealth services should continue to be the same as for in-person services during this period of time. CMS should also continue its current coverage and payment policy for audio-only services for the same period of time.”

An important topic in telehealth policy, originating site, is also addressed in the AMA comment letter: “The AMA urges CMS to make every effort to obtain permanent statutory authorization for delivery of Medicare telehealth services to patients wherever they are located. Although the expansion of the services on the Medicare Telehealth Services List has been very beneficial, by far the biggest beneficial impacts of Medicare’s changes in telehealth policies in 2020 have come from the ability to deliver services to patients wherever they are located. Physicians have identified many situations in which telehealth can offer advantages compared to traditional office visits. For example, a recent paper in JAMA Neurology described how observations in clinical settings may provide a less realistic perspective on patient functioning than observation in the home.

The AMA cites JAMA Neurology to describe some of the benefits of telehealth, including the ability to observe patients in the home and outside of a clinical setting. Neurology’s association, the American Academy of Neurology (AAN), further addresses some concerns raised by CMS with regard to telehealth services: “The agency raises concerns associated with the expanded availability of telehealth services including: whether there are increased patient safety concerns if certain services are furnished via telehealth, whether there are concerns about quality of care associated with the provision of certain services via telehealth, and whether all elements of certain services could fully and effectively be performed by a remotely located clinician using two-way, audio/video telecommunications technology. Access and patient satisfaction are well-covered in the literature. The AAN has examined the use of telemedicine for neurologic disorders. Our findings show that telemedicine is noninferior to traditional, in-person evaluations in terms of patient and caregiver satisfaction. Additionally, telemedicine has benefits in expediting care, reducing cost, increasing access to care, and improving health outcomes and diagnostic accuracy.”

Providing experiential feedback, AAN writes: “Telehealth was rapidly adopted by AAN members in response to the PHE. There is consensus among our members that telemedicine has been extremely valuable during the PHE. In many cases, delivering care via telemedicine has been a faster and easier modality to deliver care than via a comparable in-person visit. The expanded availability of telehealth services and additional administrative flexibilities have allowed AAN members to continue to provide care to patients who otherwise would have missed critical appointments with serious potential consequences.”

Regarding dates and deadlines for telehealth reimbursement policies, particularly for physicians supervising other staff, the American College of Physicians (ACP) believes: “providing for a permanent flexibility in this space supports the expansion of telehealth services and protects frontline workers by allowing appropriate social distancing measures. Similarly, we believe that clinicians should feel empowered to supervise clinical staff virtually, at their discretion, regardless of whether there is a declared PHE.”

Evaluation and Management (E/M) Codes

In its 2021 proposed Medicare Physician Fee Schedule, CMS indicated its intention to increase the number of work Relative Value Units (wRVUs) for seven of the most highly used CPT codes for evaluation and management (E/M) services. These include the commonly used established patient codes (99212 – 99215). CMS also introduced two new add-on codes, one for prolonged visits and another for visit complexity. At the same time, CMS indicated its intention to reduce the related Medicare conversion factor (which is used to convert a wRVU to a specific dollar amount) by approximately 11%, down to $32.26. This reduction in the conversion factor was to ensure that the increase in wRVUs would have a budget-neutral impact on the Medicare program.

This has ignited significant lobbying from some physician groups, particularly procedural groups, arguing that CMS and Congress should waive budget neutrality to ensure there is not major payment cuts for physician services in 2021. For example, the American College of Emergency Physicians (ACEP) recommends “CMS and the Department of Health and Human Services (HHS) utilize its 1135 waiver authority under the COVID-19 PHE to waive the budget neutrality requirement for all of CY 2021.”

Regarding the now multi-year debate over E/M code changes, the AMA recommends to CMS: “The AMA strongly supports the January 1, 2021 implementation of the improvements to the E/M office visits, including those bundled into the post-operative period of surgical procedures. However, CMS should exercise the full breadth and depth of its administrative authority to avert or, at a minimum, mitigate the unconscionable payment cuts due to budget neutrality adjustments when implementing the office and outpatient office visit coding and payment changes that it has finalized for 2021. Recommendations include: waiving budget neutrality under the public health emergency authorities, postponing implementation of GPC1X until it is better defined, implementing GPC1X with no budget neutrality offset, using previous over-estimated spending to lessen the budget neutrality adjustment, and phasing-in the budget neutrality cuts over multiple years.”

Groups that perform fewer procedures, like the American College of Rheumatology, writes to CMS: “The ACR applauds CMS for moving forward with its implementation of the finalized coding and payment structure for office/outpatient E/M services to align with the coding and documentation changes laid out by the CPT Editorial Panel. This major update to the E/M office/outpatient code will reduce administrative burdens and make code selection more intuitive to providers and staff. The finalized coding valuations are a significant step in the agency’s Patients Over Paperwork initiative to decrease the unnecessary burden on Medicare and Medicaid providers. The ACR strongly supports the new coding and payment structure as finalized in the CY2020 Physician Fee Schedule final rule. We urge the agency to move forward with implementation without delay or significant modification to the guidelines.”

The American Academy of Neurology agrees, supporting CMS “for moving forward with the finalized coding and reimbursement structure for evaluation and management (E/M) services. The AAN remains highly supportive of the new coding and reimbursement policies and supports CMS’s decision to implement them on January 1, 2021.”

Both groups agree CMS should move forward with implementation without delay or significant modification to the E/M guidelines.

Quality Payment Program

In a notable proposal, CMS intends to slow down its MIPS Value Pathways (MVPs). The American College of Physicians agrees with the need for a gradual transition, stating: “As one of a handful of organizations to submit MVPs for 2021, ACP looks forward to continue engaging with CMS toward readying ACP’s own preventive care and chronic disease management MVPs, and MVPs in general, for successful implementation. To this end, ACP calls on CMS to develop more focused cost measures, reimagine the Promoting Interoperability Category, have transparent, rigorous standards for performance metrics, and continue stakeholder engagement throughout development and implementation”

Like most groups, ACP also supports the agency’s decision to offer hardship exceptions related to MIPS and the PHE, but believes CMS can go further. “ACP appreciates the flexibilities proposed in this rule, but believes strongly that these alone are not enough. The College calls on CMS to finalize broad MIPS extreme and uncontrollable circumstances exceptions for the 2021 performance year, as it did for 2019 and 2020. To minimize burden, these exceptions should be automatic and prioritize the highest score. At a minimum, CMS should not increase the MIPS performance threshold; ACP recommends a 30-point threshold so clinicians that received hardship exemptions for 2019 and 2020 will not face a steep cliff.”

Also noting the PHE, the AMA writes: “[We urge] CMS to maintain the weight of the cost category at 15 percent and the quality category at 45 percent of the final MIPS score for the 2021 performance year in light of the unknown impact of the COVID-19 PHE on the cost measures, frontline physicians’ focus on continuing to care for patients during this pandemic, and to provide physicians more time to familiarize themselves about their resource use.”

Additionally: “The AMA supports CMS’ proposal to reduce the previously-finalized 2021 MIPS performance threshold from 60 to 50 points in light of the COVID-19 pandemic. We urge CMS to consider maintaining the threshold at 45 points and to similarly reduce the additional performance threshold to incentivize ongoing participation in MIPS.“

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