The Future of Telehealth is Now in Sight: CMS’ Proposed Changes to the Medicare Physician Fee Schedule for CY 2021
This article addresses the proposed changes relevant to telehealth services under the 2021 Medicare Physician Fee Schedule Proposed Rule. For information on proposed changes affecting digital health and/or remote patient monitoring, see our recent article HERE
On Monday, August 3, 2020, the Centers for Medicare & Medicaid Services (“CMS”) released the 2021 Medicare Physician Fee Schedule Proposed Rule (the “2021 Proposed Rule”). In the healthcare industry, the Medicare Physician Fee Schedule or “MPFS” is arguably the most prominent force shaping the industry on an ongoing basis. Each year, CMS releases a Proposed Rule mid-summer to give stakeholders a first look at what is potentially to come for the following year. Stakeholders have an opportunity to comment on those proposals, CMS reads the comments it receives, and then based on those comments CMS updates its proposals and releases a Final Rule.
Each Final Rule, in conjunction with all of the Final Rules that came before it, governs how healthcare providers get reimbursed by Medicare for the services they provide to Medicare beneficiaries. And although the Medicare population is only a fraction (albeit a rapidly growing fraction) of the entire United States healthcare system, the MPFS tends to establish and govern how other insurance payors like Medicaid, TRICARE, and even commercial payors reimburse healthcare providers for the services they provide to patients. For healthcare providers, the MPFS is a mold for the services they provide, how they provide them, and how they get paid. For vendors like digital health, telemedicine, and other healthcare technology companies, the MPFS is key to understanding and demonstrating the value of your product to your potential customers.
2020 has been a unique year for the healthcare industry with the proliferation of the global COVID-19 pandemic and one of the biggest outstanding questions is whether it will create lasting change (you can view a recording of my webinar, “ Reimbursement and Implementation of Telehealth, Remote Patient Monitoring, and Virtual Check-Ins during COVID-19...and Beyond here). The pandemic forced people to stay apart, upending an industry that traditionally thrives on face-to-face interaction between providers and patients. However, this upending has also been a catalyst for the adoption of helpful technologies that improve patient access to care and patient outcomes, like telemedicine and remote patient monitoring. To support the adoption of telehealth services in particular, CMS used its waiver authority to temporarily reduce many of the restrictions that apply to telehealth services outside of the PHE, including the removal of geographic restrictions, a vast expansion in the number and types of services eligible to be provided via telehealth, and expansion of the types of providers that can provide telehealth services. Stakeholders have been questioning whether these temporary changes will persist beyond the end of the COVID-19 Public Health Emergency (the “PHE”) and CMS has finally provided some answers with the release of the 2021 Proposed Rule. A summary of CMS’ proposals with respect to telehealth are below.
Permanent addition of certain services to the telehealth list
CMS considers telehealth services to be a replacement for in-office services, and therefore does not create separate reimbursement codes for telehealth services but rather identifies existing codes as eligible to be provided via telehealth for reimbursement purposes. The list of services that are currently eligible to be provided via telehealth can be found on the CMS website (the “telehealth list”). During the PHE, CMS temporarily has added over 80 codes to that list and has proposed to add some of those codes on a permanent basis along with a few new codes. The codes CMS has proposed for permanent addition to the Medicare Telehealth Services List on a Category 1 basis are:
Group Psychotherapy (CPT code 90853)
Domiciliary, Rest Home, or Custodial Care services, Established patients (CPT codes 99334-99335)
Home Visits, Established Patient (CPT codes 99347- 99348)
Cognitive Assessment and Care Planning Services (CPT code 99483)
Visit Complexity Inherent to Certain Office/Outpatient E/Ms (HCPCS code GPC1X)
Prolonged Services (CPT code 99XXX)
Psychological and Neuropsychological Testing (CPT code 96121)
Proposal to create a third category of criteria for adding services to the telehealth list
Outside of the COVID PHE, services are added to the telehealth list in one of two categories: (i) Category 1 refers to services that are similar to services already on the telehealth list, and (ii) Category 2 refers to services that are not similar to services already on the telehealth list. CMS considers stakeholder requests and conducts an internal audit of existing codes when determining whether a particular code should be added to the telehealth list, then conducts a review of proposed codes based on the category assigned to each. Category 1 codes are reviewed for similarity to other codes, while Category 2 codes are subject to stricter scrutiny to determine whether the service can be appropriately provided via telehealth and whether the use of a telecommunications system to deliver the service demonstrates a clinical benefit to the patient.
In the wake of the PHE, CMS is proposing to add a third category for services that were added during the PHE that offer a clinical benefit when furnished via telehealth, but for which there is not yet sufficient evidence available to consider the services as permanent additions under Category 1 or Category 2 criteria. A service added under Category 3 would remain on the telehealth list only until the end of the calendar year in which the PHE ends. In other words, if the PHE ends in 2021, services added to the telehealth list under Category 3 would only be eligible to be provided via telehealth until December 31, 2021.
The factors CMS proposes it will consider when deciding whether to add a code to the list under Category 3 are as follows:
Whether, outside of the circumstances of the PHE, there are increased concerns for patient safety if the service is furnished as a telehealth service.
Whether, outside of the circumstances of the PHE, there are concerns about whether the provision of the service via telehealth is likely to jeopardize quality of care.
Whether all elements of the service could fully and effectively be performed by a remotely located clinician using two-way, audio/video telecommunications technology.
Like the codes themselves, CMS proposes that Category 3 will expire at the end of the year during which the PHE ends. CMS has identified a list of services they believe fit the Category 3 criteria and is soliciting comments from stakeholders on whether those services are appropriate for Category 3. The identified services can be found in Table 10 of the 2021 Proposed Rule and are as follows:
Domiciliary, Rest Home, or Custodial Care services, Established patients (CPT codes 99336-99337)
Home Visits, Established Patient (CPT codes 99349-99350)
Emergency Department Visits, Levels 1-3 (CPT codes 99281-99283)
Nursing facilities discharge day management (CPT codes 99315-99316)
Psychological and Neuropsychological Testing (CPT codes 96130- 96133)
Telehealth services during the PHE that are proposed to expire
CMS has specified that the following services--though allowed to be provided via telehealth during the PHE—are NOT currently being considered for permanent or temporary addition to the telehealth list beyond the end of the PHE:
Initial nursing facility visits, all levels (Low, Moderate, and High Complexity) (CPT 99304-99306)
Psychological and Neuropsychological Testing (CPT codes 96136-96139)
Therapy Services, Physical and Occupational Therapy, All levels (CPT 97161- 97168; CPT 97110, 97112, 97116, 97535, 97750, 97755, 97760, 97761, 92521- 92524, 92507)
Initial hospital care and hospital discharge day management (CPT 99221- 99223; CPT 99238- 99239)
Inpatient Neonatal and Pediatric Critical Care, Initial and Subsequent (CPT 99468- 99472; CPT 99475- 99476)
Initial and Continuing Neonatal Intensive Care Services (CPT 99477- 99480)
Critical Care Services (CPT 99291-99292)
End-Stage Renal Disease Monthly Capitation Payment codes (CPT 90952, 90953, 90956, 90959, and 90962)
Radiation Treatment Management Services (CPT 77427)
Emergency Department Visits, Levels 4-5 (CPT 99284-99285)
Domiciliary, Rest Home, or Custodial Care services, New (CPT 99324- 99328)
Home Visits, New Patient, all levels (CPT 99341- 99345)
Initial and Subsequent Observation and Observation Discharge Day Management (CPT 99217- 99220; CPT 99224- 99226; CPT 99234- 99236)
With respect to Physical Therapy, Occupational Therapy, and Speech-Language Pathology services, CMS stated in the proposed rule that the reason it is not proposing permanent addition of these services to the telehealth list is because current federal regulations prohibit the types of providers that most commonly provide these services from providing services via telehealth. They noted, however, that in the event that these services are added to the telehealth list by an act of Congress, therapists could provide them “incident to” a billing practitioner’s services. CMS is soliciting comment on whether these particular services should be added to the telehealth list.
Inpatient and Nursing Facilities
CMS is proposing the following with respect to telehealth delivered in inpatient and nursing facilities (e.g. SNFs):
Revision of current rules to allow for subsequent nursing facility visits to be provided via telehealth once every 3 days rather than once every 30 days
Though they are not proposing to change the current requirement, CMS is soliciting stakeholder comment on whether the current in-person visit requirement for inpatient and nursing facilities should continue or whether these visits should be allowed to be provided via telehealth
Comments due early October
CMS accepts public comment on the Proposed Rule for 60 days following its publishing in the Federal Register. As of the date of initial publishing of this post, the Proposed Rule has not yet been published in the Federal Register, however we can expect it to be within the next couple of days. As such, stakeholders should expect comments to be due in early October.
Though the proposed rule offers some expansion with respect to current reimbursement for telehealth services, it leaves several outstanding questions unanswered. In particular, it remains to be seen whether the current geographic restrictions that have been lifted during the PHE will be permanently removed, whether Medicare will continue to reimburse telehealth services at the same rate it currently reimburses services provided in-person, and whether behavioral health providers, physical therapists, occupational therapists, and other therapy providers will continue to be reimbursed for services delivered via telehealth after the PHE. However, these are all items that Congress can address via legislative changes. Nixon Law Group attorneys are keeping our ears to the ground for any additional updates that may come forth in the near future, and we will keep our audience apprised as we learn new information.
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