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This week, the comment period closed for the calendar year 2021 (CY21) Physician Fee Schedule (PFS) proposed by the Centers for Medicare & Medicaid Services (CMS). The PFS is an annual rule-making process through which CMS identifies codes and payment rates to be used to reimburse Medicare Part B physician services in the following calendar year. The CY21 PFS, published in the Federal Register in August, proposes significant changes to telehealth reimbursement within the Medicare program by adding new telehealth services, expanding access to types of telehealth providers, and updating rules for remote patient monitoring (RPM) services. Faegre Drinker professionals were pleased to assist the ATA, the only organization exclusively committed to the advancement of telehealth, in compiling comprehensive and timely comments to CMS to advocate for the advancement of telehealth and remote care in the final rule.

Telehealth Services

During the COVID-19 Public Health Emergency (PHE), Congress granted CMS new authority to waive specific statutory restrictions on the provision of telehealth in the Medicare program. These waivers notably have allowed the agency to reimburse providers for telehealth services without regard to the restrictions found in Section 1834(m) of the Social Security Act that would normally apply. For example, this section of law traditionally limits telehealth access to only some populations in certain geographic areas and in specific brick-and-mortar locations, rarely including the patient’s home. During the pandemic, CMS has been able to waive these arbitrary restrictions, enabling any Medicare beneficiary to access the benefits of telehealth regardless of where they are.

However, this new access to care will go away with the eventual expiration of the declared public health emergency unless Congress acts to make the changes permanent. Fortunately, Health and Human Services Secretary Alex Azar has indicated in the last week that he will extend the PHE, which is set to expire on October 23. With the PHE declaration renewal, the new expiration would be January 21. Because the PHE will eventually be allowed to expire, telehealth champions in Congress have introduced several pieces of legislation to make the necessary statutory changes to allow Medicare patients to access telehealth post-pandemic.

In the CY21 PFS, CMS takes steps to permanently expand access to telehealth within its statutory authority. While CMS cannot expand access to care by lifting the restrictions on a patient’s originating site or geographic location without congressional action, the agency can expand the list of telehealth services that qualify for reimbursement under the PFS.

The ATA commented to CMS in support of permanent coverage of new telehealth services, including psychotherapy and additional evaluation and management codes. The ATA recommended that additional codes for inpatient hospital care and hospital observation services be added to the list for coverage in the final rule. The ATA also supports CMS’ creation of a category of services that should continue to be temporarily covered while CMS reviews the data for permanent coverage. This bridge to coverage is very practical and creates an avenue for data collection that is not very feasible in the absence of any coverage.

Additional ATA comments address:

  • Audio-only services. In the proposed rule, CMS seeks to continue coverage of audio-only services during the pandemic but not beyond. The ATA notes that it supports coverage of audio-only services when clinically appropriate. Such coverage is especially important to maintain access to health care during the pandemic.
  • New patients. The ATA encourages CMS to make telehealth services available to both new and existing patients as a doctor-patient relationship may legitimately be established using telehealth (see the ATA’s new “Standardized Telehealth Terminology and Policy Language for States on Medical Practice”).
  • Supervision requirements. The ATA supports the ability of supervision to be done remotely using telehealth when the supervising provider does not clinically need to be available in person.
  • The Medicare Diabetes Prevention Program (MDPP). The ATA strongly recommends that CMS allow MDPP services to be delivered by virtual providers recognized by the Centers for Disease Control and Prevention (CDC).

CMS also cannot add federally qualified health centers (FQHCs), rural health clinics (RHCs) or other providers, such as physical therapists, speech-language pathologists or occupational therapists, as telehealth service providers under Section 1834(m) without action by Congress. The ATA is working with Congress to make these changes and commented in support of these providers’ ability to practice telehealth.

Remote Patient Monitoring

RPM services are not payable under Section 1834(m) as they are not face-to-face video services and are therefore not subject to the restrictions found in 1834(m). In recent years, CMS has taken steps to create coverage for this important type of virtual care. In the CY21 PFS, CMS seeks to answer stakeholder questions about how the somewhat new RPM codes should work. Unfortunately, some of the clarity provided by CMS in this rule only creates more confusion as it is inconsistent with the intention of the CPT codes used and with the current clinical practice of RPM services.

The ATA’s comments request that CMS reconsider the way it has outlined the use of RPM codes in this proposed rule based on current clinical practice and the definition of the codes. Specifically, the process for billing codes should be consistent with the way that RPM data is collected throughout the month and the way that treatment plans are communicated back to the patient. The clinical benefit of RPM is that patients’ physiological data associated with a particular condition can be monitored much more closely by a clinical team than it would if the patient were only periodically seeing a physician. While this process will take some of the physician or managing clinician’s time to review the data and update treatment plans, it does not inherently require a remote video visit with the patient. The idea is that RPM is complementary to clinical visits, whether in person or virtual, so a clinical visit should not be contained within the RPM code.

Additional updates should be made to ensure that the full benefit of RPM can be achieved. The ATA recommends that CMS consider coverage for clinical scenarios that necessitate less than 16 days of RPM data in a month — for instance, continuous, short-term follow-up following surgery. The ATA also recommends that CMS ensure that patients who need multiple devices to monitor different physiological functions, whether for a single condition or multiple conditions, are able to access that care. And as with traditional telehealth services, the ATA recommends that RPM be available to both new and existing patients.

Finally, the ATA recommends that regulatory flexibilities allowed during the COVID-19 PHE for both telehealth and RPM services continue until one year after the PHE expires. This will ensure continuous access to care while CMS and outside stakeholders evaluate the cost and clinical effectiveness of different services delivered remotely.

The ATA was out of the gate early with its comments to the CY21 PFS proposed rule, helping to inform the industry and amplify messages across diverse stakeholders who advocate for increased access to digital health services. You can read the ATA’s full comments to CMS here.

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