The Centers for Medicare and Medicaid Services (CMS) released the 2022 proposed Physician Fee Schedule (MPFS) on July 13, 2021. This year’s proposed rule, which signals the agency’s thinking around reimbursement for telehealth, RPM/RTM (check out our article on new remote therapeutic monitoring codes topics here!), and audio-only care, indicates that the agency is leaning toward extending some of their remote care reimbursement policies post-PHE, but stops short of the broad expansion those in the industry continue to push for. 

TL;DR: CMS didn’t propose to add any permanent telehealth codes, but did incrementally expand patient access to telehealth in other ways. CMS flexed its legislative interpretation muscles to expand the definition of “interactive communications system” to include audio-only mental health services, something industry advocates have been pushing for years. CMS is also considering permanently adopting remote “direct supervision”. The majority of the proposed changes are limited in applicability to mental health services, likely to fulfill the legislative intent of the Consolidated Appropriations Act (CAA), which was enacted late in 2020. But, they may foreshadow a broader expansion to other services in 2022 and beyond. 

Medicare Declines to Add Telehealth Codes, Reveals Key Reasons

The Medicare telehealth services list grew significantly between 2020 and 2021, but many temporary codes may disappear when the public health emergency (PHE) ends. Under normal circumstances, CMS receives and reviews requests to add services to Medicare’s telehealth services list on a rolling basis each year, then proposes and finalizes any changes in the annual MPFS. Last May, as the pandemic was raging, CMS created a new process that enabled the agency to add (several dozen) telehealth services on an interim basis (Category 3 services) outside of this annual rulemaking, during the PHE. CMS currently reimburses for Category 3 services, but under current regulations will cease to do so following the end of the calendar year in which the PHE for COVID–19 ends. Codes must be approved as Category 1 or Category 2 to become permanent telehealth codes. 

In this proposed rule, CMS:

1. Declined to add any services to Category 1 or Category 2* 

2. Stated the agency will continue to consider adding temporary Category 3 services

3. Proposed to retain all services added to the Medicare telehealth services list on a Category 3 basis under the 2021 MPFS until the end of 2023

4. Solicited comments on whether any of the services that were added to the Medicare telehealth list for the duration of the PHE for COVID19, but were NOT included in the 2021 MPFS, should now be added as Category 3 services

Stakeholders should be thinking right now about what services they’d like to see added to the Category 3 list (which will secure reimbursement through 2023), and what Category 3 services they would like made permanent. In the proposed rule, CMS laid out the criteria for all three categories, and provided a clear roadmap for those requesting reimbursement for a new telehealth service.

So, what is CMS really looking for when considering new telehealth services? The explanations contained in the proposed rule highlight the need to over-educate the agency on the nature of the remote service you’re advocating for when submitting a request. The complexity of some services and technology may be unknown to a government reviewer. If you don’t explain the method, means, staffing, risks, and efficacy of a technology or service, the risk that the code is rejected for failing to meet the permanent code criteria increases. 

The requestor should focus their submission on patient safety and clinical effectiveness—particularly for services that may require an in-person component. In particular, requestors should be prepared to educate the agency on the specifics of how a service is delivered and supported (by clinical staff) in a remote environment, and to defend why objective functional outcomes for telehealth patients were similar to those of patients treated in person.

Stakeholders who wish to push back on CMS’s rejection of the 2022 proposed codes or those wishing to advocate for addition of a Category 3 code should contact Nixon Gwilt Law immediately for assistance in filing a public comment. Stakeholders who wish to add additional Category 1 or 2 services starting in 2023 have until February 10, 2022 to submit their requests. We can help!

CMS Eliminates Geographic Restrictions for Telemental Health Services… Sort of 

During the PHE, a patient’s home can serve as the Originating Site for the purposes of federal telehealth reimbursement. Upon the expiration of the PHE, however, the onerous geographic restrictions for Medicare beneficiaries will click back into place unless Congress acts to change the current law. The CAA was an attempt to eliminate reimbursement barriers for mental health services, but poor drafting resulted in the inclusion of an in-person meeting requirement as a prerequisite for reimbursement of subsequent telehealth visits. Industry advocates and stakeholders are scrambling to make the case to Congress that telehealth services should be reimbursed regardless of geographic location or originating site of service, but we haven’t yet seen any movement. 

In this proposed rule, CMS proposes that, following the end of the PHE, a patient’s home will continue to be an acceptable Originating Site for telehealth services, but only for the diagnosis, evaluation, or treatment of a mental health disorder—and only under certain circumstances:

1. The physician or practitioner must have furnished an item or service in person to the patient, without the use of telehealth, for which Medicare payment was made, within 6 months of the telehealth service, “and thereafter, at such times as the Secretary determines appropriate.”

2. The services must be medically necessary

The agency is bound by law to require an in-person meeting within 6 months BEFORE the telehealth service, but it is up to CMS to determine what intervals AFTER the telehealth service the patient and practitioner must meet in person. CMS is seeking comment on whether a different interval, whether shorter, such as 3-4 months or longer, such as 12 months, may be appropriate to balance program integrity and patient safety concerns with increased access to care. CMS is also seeking comment on whether the required in-person, non-telehealth service could also be furnished by another physician or practitioner of the same specialty and same subspecialty within the same group as the physician or practitioner who furnishes the telehealth service. 

The legislative requirement that an in-person meeting occur is an example of unintended consequences of poorly considered legislation. Fortunately, CMS seems to be indicating some flexibility around WHO does the in-person meeting. Stakeholders like KindBody and SmileDirectClub are examples of companies exploring partnerships with “brick and mortar” partners, so the opportunities to get creative still exist, even where there are regulatory hurdles!

**Note: For those patients with a diagnosed substance use disorder (SUD), CMS already reimburses for telehealth services provided in the patient’s home for treatment of that disorder or a co-occurring mental health disorder. The proposed rule does not impact this reimbursement rule. 

Telephone Telehealth: CMS Opens the Door to Audio-Only Reimbursement

Another big win for mental health practitioners is CMS’s proposed revision of the term “interactive telecommunications system” to include interactive, real-time, two-way audio-only technology for telehealth services furnished for the diagnosis, evaluation, or treatment of a mental health disorder. During the PHE, emergency waivers already permit practitioners to bill for certain behavioral health and evaluation and management (E/M) services furnished via audio-only means. After the PHE for COVID-19 ends, CMS is proposing that all telehealth services EXCEPT mental health services will again be subject to all statutory and regulatory requirements, including the requirement to use interactive, real-time, two-way audio AND video technology. 

CMS proposes that, in order to bill for audio-only telemental health services, the distant site practitioner must:

1. Have the technical capability at the time of the service to use an interactive telecommunications system that includes video; 

2. The patient must be incapable of, or fail to consent to, the use of video technology for the service; and 

3. The patient must be located at his or her home at the time the service is delivered. 

CMS indicated that it is carving out mental health services because of the widespread access barriers to mental health services, including the shortage of mental health professionals, and because they have observed that large populations of beneficiaries lack adequate broadband access to enable audio/video interaction. After a review of claims data, CMS learned that audio-only telephone E/M services were some of the most commonly performed telehealth services during the PHE. Despite this, CMS does not propose to expand any other audio-only services post-PHE. The logic presented by CMS regarding this change struck me as a bit convoluted. Why are broadband access arguments compelling for mental health services only, given that the same populations lacking broadband have other non-mental health needs that telehealth could address as well?

CMS states “we…believe that mental health services are different from most other services on the Medicare telehealth services list in that many of the services primarily involve verbal conversation where visualization between the patient and furnishing physician or practitioner may be less critical to provision of the service.” I would argue that in some cases, visualization is important to mental health treatment, AND that visualization is not always necessary in other healthcare interactions. Because non-physicians are making these decisions, it is up to subject matter experts in medicine and tech to make the case to the regulators that they should modify their thinking on this point. 

CMS is also proposing to adopt a similar ongoing requirement that an in-person item or service must be furnished within 6 months before the mental health telehealth service. They further hinted that they might preclude practitioners from the ability to bill for audio-only services for “higher level services” (e.g. Level 4/5 E/M codes).

CMS Mulls Making Virtual “Direct Supervision” Permanent 

CMS changed the definition of “direct supervision” during the PHE to allow the supervision via “virtual presence” using real-time audio/video technology, as opposed to requiring physical availability. For telemedicine companies, this policy has enabled virtual care teams to function in federally reimbursable models in which telehealth services can be provided by clinical staff “incident to” a practitioner’s services. Currently, this policy is set to expire at the end of the calendar year in which the PHE for COVID-19 ends or December 31, 2021.

CMS is requesting comment on whether this flexibility should be extended or made permanent. Specifically, CMS is seeking comment on the extent to which remote supervision was utilized during the PHE, and the impact that eliminating this flexibility would have on practitioners. This is a huge opportunity for stakeholders, especially PT/OT/ST practitioners whose only option for Medicare reimbursement is to bill “incident to” once the PHE ends.

CMS Proposes to make “longer” audio-only virtual check-in permanent

In the 2021 MPFS, CMS established a temporary code—HCPCS G2252 (Communication Technology-Based Service (CTBS))—to enable practitioners to bill for virtual check-ins that last longer (11-20 minutes) than the standard virtual check-in—G2012 (5-10 minutes). Based on feedback from commenters, CMS is proposing to permanently adopt coding and payment for CY 2022, HCPCS code G2252 as described in the CY 2021 PFS final rule.

G2252: Brief communication technology-based service, e.g., virtual check-in service, by a physician or other qualified health care professional who can report evaluation and management services, provided to an established patient, not originating from a related E/M service provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment; 11–20 minutes of medical discussion on an interim basis.

G2012: Brief communication technology-based service, e.g. virtual check-in, by a physician or other qualified health care professional who can report evaluation and management services, provided to an established patient, not originating from a related e/m service provided within the previous 7 days nor leading to an e/m service or procedure within the next 24 hours or soonest available appointment; 5-10 minutes of medical discussion

Accountable Care Organizations (ACOs) will likely benefit from CMS’s proposal to include G2252 in the Shared Savings Program definition of primary care services used for assignment, because it may result in more accurate assignment of beneficiaries based on where they receive the plurality of their primary care services. 

Telehealth and Chronic Pain Management

One of the paradoxical effects of the opioid crisis is the depleted number of healthcare professionals practicing pain management. And the COVID-19 pandemic only served to make access to pain specialists even more difficult. Pain is a significant public health problem in the United States, and in this year’s proposed 2022 MPFS, CMS put out a call to the public to help guide the agency as it creates the first codes specific to pain management care. CMS notes that existing chronic care management (CCM) codes are insufficient to cover the complexity of pain management care, and it appears the agency may be willing to start from scratch. This is an incredible opportunity for stakeholders to educate the agency and to help craft federal policy on pain management. 

Specifically, CMS solicits comments on:

1. The specific tasks necessary to perform pain management

2. In what healthcare settings and stages in treatment are transitions from opioid dependance happening 

3. What types of practitioners are delivering pain management services

4. Whether CMS should create separate coding and payment for activities involved with chronic pain management and achieving safe and effective dose reduction of opioid medications when appropriate (e.g., diagnosis, assessment and monitoring, medication management; coordination of behavioral health treatment) vs. using an add-on payment billed with an existing E/M visit

5. What services that can be delivered via telehealth modalities

6. Out of pocket payment issues

7. How CMS could support interdisciplinary coordination of care and whether services can or should be performed “incident to” a billing physician (similar to how CMS structured Behavioral Health Integration (BHI) codes)

CMS notes that telehealth modalities may improve patient access to pain management specialists, especially for people who frequently experience disparities in pain care such as rural dwellers, racial/ethnic minorities, and people with disabilities. This opportunity for digital health and telemedicine companies in the pain management space shouldn’t be missed.

Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs) - Telecommunications Technology

During the PHE, RHCs and FQHCs can bill for telehealth services under the MPFS as a distant site practitioner. RHCs and FQHCs bill for these Medicare telehealth services using HCPCS code G2025. Once the PHE ends, the payment mechanism will revert to the established methodology—the RHC All Inclusive Rate (AIR) or the FQHC Prospective Payment System (PPS). One exception is that RHCs and FQHCs would continue to report and be paid for furnishing medically necessary virtual communications services in accordance with the requirements for HCPCS code G0071.

To align with the changes to the MPFS related to audio-only mental health services, CMS is proposing to modify the regulatory definition of “mental health visit” to eliminate the “face to face” requirement. If finalized, CMS’s proposed rule would enable RHC and FQHC practitioners to provide mental health services via interactive, real-time telecommunications technology (including audio-only in in cases where beneficiaries are not capable of, or do not consent to, the use of devices that permit a two-way, audio/video interaction). CMS solicits comment on whether the agency should impose a requirement that an in-person visit occur 6 months before the telehealth visit, to align with the new requirements under the MPFS. Given the nature of RHCs and FQHCs, I expect commenters to advocate against such a requirement, as it would present an especially harsh burden on rural patients. 

CMS also proposes to add a supplemental payment for an FQHC where MA beneficiaries do not wish to use or do not have access to devices that permit a two-way, audio/video interaction for the purposes of diagnosis, evaluation or treatment of a mental health disorder, and those beneficiaries receive a covered audio-only service from an FQHC. 

Audio-Only Codes for Opioid Treatment Programs

CMS proposed to allow OTPs to provide therapy and counseling using audio-only means after the conclusion of the PHE for COVID-19 in cases where audio/video communication is not available to the beneficiary, provided all other applicable requirements are met. CMS is proposing the use of a new service-level modifier to be appended to claims submitted for the counseling and therapy add-on code (HCPCS code G2080) when furnished via an audio-only interaction, which would serve to certify that the practitioner had the capacity to furnish the services using two-way, audio/video communication technology, but instead, used audio-only technology because audio/video communication technology was not available to the beneficiary.

The Bottom Line/Big Takeaway

This is not the first time CMS has used creative interpretations of outdated or poorly constructed legislation to expand patient access to virtual care services. One very recent example is the creation of remote patient monitoring in 2018! While this proposed rule shows great promise for the willingness of CMS to further federal policy on telehealth and virtual care, it remains incredibly important for industry and patient advocates to push Congress to pass well-considered, comprehensive legislation to modernize virtual care reimbursement. 

Public Comment on the proposed 2022 Medicare Physician Fee Schedule

The questions and issues above underscore the importance of providing feedback to CMS’ 2022 Proposed MPFS during the public comment period, which ends at 5:00pm Eastern on September 13, 2021. Please contact us if you would like assistance in preparing and submitting comments around the telehealth proposals described above.