On August 4, 2020, the Centers for Medicare and Medicaid Services (CMS) released a proposed rule to update its payment policies under the Medicare Physician Fee Schedule (PFS) for calendar year 2021. The proposed rule was issued in tandem with a presidential executive order, which directed the Secretary of the US Department of Health and Human Services (HHS) to propose regulations expanding telehealth services covered by Medicare. CMS stated that the proposed rule “is one of several proposed rules that reflect a broader Administration-wide strategy to create a healthcare system that results in better accessibility, quality, affordability, empowerment, and innovation.”
In response to the coronavirus (COVID-19) public health emergency (PHE), CMS has issued several temporary waivers and flexibilities that expand telehealth reimbursement under Medicare, Medicaid and the Children’s Health Insurance Program for the duration of the COVID-19 PHE. CMS issued these waivers under authorities granted pursuant to HHS’s public health declaration, as well as legislation passed in response to the pandemic. Many of these waivers have substantially altered the Medicare telehealth reimbursement landscape and, as we detailed in our prior On the Subject, many can be made permanent via regulatory action. The proposed rule represents the first official word that CMS will take such action to make certain of its waivers permanent. These policy changes have the potential to greatly increase the availability of telehealth to Medicare beneficiaries around the country.
CMS will accept comments, either electronically or by mail, on the proposed rule until 5 pm EDT on October 5, 2020.
CMS proposed to add several services, listed below, to its list of services that may be delivered via telehealth. Many of these were previously added on an interim final rule basis for the duration of the PHE. The proposed rule would keep them on the Medicare telehealth services list even after the PHE ends.
CMS also proposed a new method for adding or deleting services from the Medicare telehealth services list. Currently, CMS evaluates new services for inclusion based on two categories: Category 1 is for services that are similar to professional consultations, office visits and office psychiatry visits that are already on the Medicare telehealth services list, while Category 2 is for services that are not similar to those already on the list, but that would still be appropriate to include. Because of the COVID-19 PHE, CMS has proposed to add a Category 3, which would include services that would be temporarily on the Medicare telehealth services list. CMS proposed this third category because, while CMS currently has the authority to waive or modify Medicare telehealth payment requirements during the PHE, that authority will expire once the PHE ends. And once the PHE expires, Medicare payment policy will return to the most recently established Medicare telehealth services list, which would not include many of the services temporarily added to the list for the duration of the PHE.
At the outset, Category 3 would include all telehealth services added to the list during the PHE, which would ensure that healthcare providers would not suddenly be prevented from offering the services via telehealth, and would also enable CMS to evaluate whether the services should be added on a more permanent basis. Services added through the Category 3 pathway would remain on the Medicare telehealth services list through the end of the calendar year in which the PHE ends.
Services Proposed to Permanently Remain on the Medicare Telehealth Services List
|HCPCS CODE||Long Descriptor|
|GPC1X||Visit complexity inherent to evaluation and management associated with primary medical care services that serve as the continuing focal point for all needed healthcare services (Add-on code, list separately in addition to an evaluation and management visit)|
|90853||Group psychotherapy (other than of a multiple-family group)|
|96121||Neurobehavioral status exam (clinical assessment of thinking, reasoning, and judgment, [e.g., acquired knowledge, attention, language, memory, planning and problem-solving, and visual-spatial abilities]), by physician or other qualified healthcare professional, both face-to-face time with the patient and time interpreting test results and preparing the report; each additional hour (List separately in addition to code for primary procedure)|
|99XXX||Prolonged office or other outpatient evaluation and management service(s) (beyond the total time of the primary procedure which has been selected using total time), requiring total time with or without direct patient contact beyond the usual service, on the date of the primary service; each 15 minutes (List separately in addition to codes 99205, 99215 for office or other outpatient Evaluation and Management services)|
|99483||Assessment of and care planning for a patient with cognitive impairment, requiring an independent historian, in the office or other outpatient, home or domiciliary or rest home, with all of the following required elements: Cognition-focused evaluation including a pertinent history and examination; Medical decision making of moderate or high complexity; Functional assessment (e.g., basic and instrumental activities of daily living), including decision-making capacity; Use of standardized instruments for staging of dementia (e.g., functional assessment staging test [FAST], clinical dementia rating [CDR]); Medication reconciliation and review for high-risk medications; Evaluation for neuropsychiatric and behavioral symptoms, including depression, including use of standardized screening instrument(s); Evaluation of safety (e.g., home), including motor vehicle operation; Identification of caregiver(s), caregiver knowledge, caregiver needs, social supports, and the willingness of caregiver to take on caregiving tasks; Development, updating or revision, or review of an Advance Care Plan; Creation of a written care plan, including initial plans to address any neuropsychiatric symptoms, neuro-cognitive symptoms, functional limitations, and referral to community resources as needed (e.g., rehabilitation services, adult day programs, support groups) shared with the patient and/or caregiver with initial education and support. Typically, 50 minutes are spent face-to-face with the patient and/or family or caregiver.|
|99334||Domiciliary or rest home visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A problem focused interval history; A problem focused examination; Straightforward medical decision making. Counseling and/or coordination of care with other physicians, other qualified healthcare professionals, or agencies are provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s) are self-limited or minor. Typically, 15 minutes are spent with the patient and/or family or caregiver.|
|99335||Domiciliary or rest home visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: An expanded problem focused interval history; An expanded problem focused examination; Medical decision making of low complexity. Counseling and/or coordination of care with other physicians, other qualified healthcare professionals, or agencies are provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s) are of low to moderate severity. Typically, 25 minutes are spent with the patient and/or family or caregiver.|
|99347||Home visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A problem focused interval history; A problem focused examination; Straightforward medical decision making. Counseling and/or coordination of care with other physicians, other qualified healthcare professionals, or agencies are provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s) are self limited or minor. Typically, 15 minutes are spent face-to-face with the patient and/or family.|
|99348||Home visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: An expanded problem focused interval history; An expanded problem focused examination; Medical decision making of low complexity. Counseling and/or coordination of care with other physicians, other qualified healthcare professionals, or agencies are provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s) are of low to moderate severity. Typically, 25 minutes are spent face-to-face with the patient and/or family.|
CMS requires that residents of skilled nursing facilities receive an initial visit from a physician and subsequent periodic personal visits from either a physician or a nonphysician practitioner (NPP). Historically, physicians and NPPs were prohibited from performing those visits via telehealth, but CMS issued a waiver that permitted such visits to be performed via telehealth for the duration of the PHE. CMS now seeks comment on whether it should extend this flexibility beyond the PHE.
CMS also noted that it has received requests to remove frequency limitations on the number of subsequent inpatient visits that can be conducted via telehealth. CMS announced that it would not propose to modify this policy, on the grounds that in-person care is preferable “to facilitate the comprehensive, coordinated, and personal care that medically volatile, acutely ill patients require on an ongoing basis.”
That said, CMS proposed to revise the limit on providing subsequent nursing facility visits via telehealth from once every 30 days to once every three days. CMS said that it was persuaded by stakeholder comments that this limitation hinders access to care and that clinicians should have the authority to determine how often their patients should receive visits via a Medicare telehealth service.
In the March 31, 2020, interim final rule for the Medicare and Medicaid programs, CMS announced that certain NPPs, consistent with their respective benefit category, could bill HCPCS codes G2061 through G2063 for the duration of the PHE. These HCPCS codes, which include services such as online assessment and management for an established patient for up to seven days, could be billed by licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists and speech-language pathologists. CMS has now proposed to adopt these policies permanently. Notably, this is not an exhaustive list, and CMS seeks comments on other benefit categories into which these services fall.
CMS proposed to allow billing of other communication-technology-based services by certain NPPs through the creation of two additional telehealth codes:
CMS recognized that it previously valued similar services differently based on who can and cannot bill independently for office/outpatient E/M services, with higher values placed on practitioners who can independently bill E/M services. CMS noted that similar check-ins provided by nurses and other clinical staff could be important aspects of coordinated patient care, and thus CMS proposed to value codes G20X0 and G20X2 identically to other physician telehealth check-in codes G2010 and G2012. To further facilitate the billing of communication-technology-based services by therapists, CMS proposed to designate HCPCS codes G20X0, G20X2, and G2061 through G2063 as “sometimes therapy” services.
Practitioners must continue to obtain patient consent so that patients are mindful of their co-pay obligations when receiving these services. CMS does not believe that the timing or manner in which patient consent is acquired should interfere with the delivery of brief communication-technology-based services. Further, a patient’s consent to receive these services can be documented by auxiliary staff under general supervision, as well as by the billing practitioner.
CMS recognizes that, in some instances, technology allows appropriate supervision without the physical presence of a physician (or other supervising practitioner) when a service or procedure is performed. CMS adopted an interim final policy revising the definition of direct supervision to include virtual presence using interactive audio and video technology for the duration of the PHE to reduce exposure risk to the supervising practitioner, and CMS has now proposed to extend this policy until the end of the calendar year in which the PHE ends, or December 31, 2021, whichever is later. CMS opted to do so because it recognizes that the unique circumstances faced by individual communities may continue after the PHE ends, and extending this policy provides time to solicit public input on situations where the flexibility to use real-time audio and video technology to offer direct virtual supervision could still be necessary and appropriate.
In the proposed rule, CMS clarified that direct supervision does not require real-time presence or observation, but instead requires the supervising physician (or other practitioners) to be immediately available to engage via audio/video technology (excluding audio-only). Despite CMS’s flexibility in revising the direct supervision definition, CMS remains concerned that direct supervision through virtual presence may be insufficient to support the PFS payment permanently, due to patient safety issues. Therefore, CMS seeks information from commenters on whether there should be any additional “guardrails” or limitations to ensure patient safety and clinical appropriateness. CMS also seeks information on what risks this policy might introduce to patients as they receive care from practitioners that would supervise care virtually in this way and potential concerns around induced utilization and fraud, waste and abuse, and how those concerns might be addressed.
The proposed rule also solicits comments on the continuation of payment for audio-only services. In particular, CMS is soliciting comments on whether it should develop coding and payment for a service similar to the virtual check-in but for a more extended unit of time and with an accordingly higher value. It is also seeking input from commentators on the appropriate duration interval for such services and the resources in both work and practice expense that would be associated with furnishing them. Additionally, CMS is looking for comments on whether separate payment for such telephone-only services should be a provisional policy to remain in effect until a year or some other period after the end of the PHE or if it should be a PFS payment policy permanently.
Many providers and patients have benefited from the increased flexibility of audio-only services during the PHE, and the delivery of these services will be interrupted if the PHE ends before CMS has decided whether and how to continue payment for audio-only services. This presents a significant challenge for providers, who will have to consider how to continue providing care to these patients in the absence of payment audio-only services.
In addition to the above proposed changes, the proposed rule: