CMS 2021 Proposed Physician Fee Schedule – Updates to Telehealth, Quality Payment Program and Specialists Reimbursement

The Centers for Medicare & Medicaid Services (CMS) released the CY 2021 Revisions to Payment Policies under the Physician Fee Schedule and Other Changes to Part B Payment Policies, which includes proposals related to Medicare physician payment and the Quality Payment Program (QPP). Since the public health emergency (PHE) was declared earlier this year, the Administration has issued waivers to increase flexibility and reduce regulatory burden to help providers meet the demands of the Coronavirus (COVID-19) pandemic. This rule includes several proposals to make permanent, extend or transition out of these COVID-19 flexibilities. Comments on the proposed rule are due by October 5, 2020 and you can comment directly at this link. When commenting, refer to CMS-1734-P.

CMS also indicated that it will waive the 60-day publication requirement for the Final Rule and replace it with a 30-day notification. This means that the Final Rule will be effective January 1, 2021, even though it may not be published until December 1, 2020, instead of the typical November 1 target publication date.

Additions to the Medicare Telehealth Services List

 Before the COVID-19 PHE, 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.

CMS proposes to add the following services to the Medicare Telehealth List on a permanent basis because these are services that are similar to the professional consultations, office visits, and office psychiatry services that are already covered on the Medicare Telehealth List.

• Visit complexity associated with certain office/outpatient E/Ms (GPC1X)
• Prolonged Services (99XXX)
• Group Psychotherapy (90853)
• Neurobehavioral Status Exam (96121)
• Care Planning for Patients with Cognitive Impairment (99483)
• Domiciliary, Rest Home, or Custodial Care Services (99334)
• Domiciliary, Rest Home, or Custodial Care services (99335)
• Home Visits (99437 and 99438)

In addition, with respect to the following services — which CMS added on a temporary basis through the COVID-related Interim Final Rules — CMS would continue to cover the services, but only until the end of the calendar year in which the PHE ends:

• Domiciliary, Rest Home, or Custodial Care services, Established Patients (99336, 99337)
• Home Visits, Established Patient (99349, 99350)
• Emergency Department Visits for Evaluation and Management of a Patient (99281, 99282, 99283)
• Nursing Facilities Discharge Day Management (99315, 99316)
• Psychological and Neuropsychological Testing (96130, 96131, 96132, 96133)

CMS notes that it could foresee a reasonable potential likelihood that the above services may offer clinical benefit when furnished via telehealth beyond the COVID-19 PHE. However, absent additional evidentiary support for their clinical benefit and further consideration from CMS, these services will not be added permanently to the Medicare Telehealth List right now.

Finally, there are some telehealth services that are covered during the COVID-19 PHE, but that are not proposed to be added to the Medicare Telehealth List.  For those services, CMS is soliciting comment on whether they should be added on either a temporary or permanent basis.

For example, CMS does not propose to add initial and/or final discharge interactions (CPT codes 99234-99236 and 99238-99239) as covered services. CMS is concerned that a physician or health care provider may not fully understand the health status of the person with whom they are establishing a clinical and therapeutic relationship without an in-person assessment.

Other Proposals and Clarifications Related to Telehealth Services

Frequency Limitations and Nursing Home “Personally Performed” Requirement

During the COVID-19 PHE, CMS waived the 42 C.F.R. § 483.30(c) requirement for physicians and non-physician practitioners to personally perform the periodic personal visits required for nursing home residents, and allowed these visits to be conducted via telehealth. CMS is seeking comment on the appropriateness of maintaining this flexibility outside of the COVID-19 PHE.

Before COVID-19, subsequent hospital care services (inpatient and nursing facility visits) were limited to one telehealth visit every three days for hospital inpatients and one visit every 30 days for patients in a nursing facility. During the pandemic, CMS temporarily removed these frequency limitations so physicians could provide services to inpatients while quarantining, etc. CMS does not propose to remove frequency limitations on subsequent inpatient visits on a permanent basis due to longstanding concerns about the potential acuity and complexity of patients, which may necessitate in-person visits. The agency is seeking comments on this point, however. Based on stakeholder feedback, CMS proposed to revise the frequency limitation for subsequent nursing facility visits from one visit every 30 days to one visit every three days.

Restrictions on Smart Phones

Current regulations provide that “[t]elephones, facsimile machines, and electronic mail systems do not meet the definition of an interactive telecommunication system.” CMS proposes to revise the definition of “interactive telecommunication systems” to mean any “multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication.” This could include smart phones if all other requirements related to furnishing the service are satisfied.

Physician and Patient in Same Location

CMS reiterates that the telehealth rules do not apply when the beneficiary and the practitioner are in the same location even if audio/video technology assists in furnishing a service (e.g., a physician in a hospital providing services to an inpatient when the physician and inpatient are separated by protective glass for precautionary purposes). In such cases, the practitioner should bill for the service as if it was furnished in person and none of the telehealth statutory restrictions or regulatory requirements apply.

Incident-To Services

CMS proposes to clarify that services that may be billed incident-to may be provided via telehealth incident to a physicians’ services and under direct supervision of the billing professional (consistent with the policy clarification CMS made in the May Interim Final Rule).

Direct Supervision by Interactive Telecommunications Technology

For the duration of the COVID-19 PHE, the “necessary presence of the physician for direct supervision includes virtual presence through audio/video real-time communications technology when the use of such technology is indicated to reduce exposure risks for the beneficiary or health care provider.” CMS proposes to allow direct supervision to be provided using real-time, interactive audio and video technology (excluding audio only) through December 31, 2021. CMS also seeks comment on the clinical appropriateness, safety, and utilization, fraud, waste and abuse concerns associated with extending the policy beyond the PHE and any guardrails that should be implemented with either a short or long term extension.

Proposals, Clarifications, and Requests for Comment on Other Virtual Services

There are a number of “virtual” services that Medicare covers that are not technically “telehealth” services as defined by Section 1834(m) of the Social Security Act. Examples include remote interpretation of diagnostic testing and chronic care management. As such, these services are not governed by telehealth’s statutory limitations, e.g., patients need not be in a clinical “originating site” for the Medicare coverage.  Prior to the COVID-19 PHE, CMS finalized proposals to expand coverage of these services when furnished through telecommunications technology and the CY 2021 PFS Proposed Rule continues this trend.

Services Furnished by LCSWs, PTs, OTs, and SLPs

CMS clarifies that licensed clinical social workers (LCSWs), clinical psychologists, physical therapists (PTs), occupational therapists (OTs), and speech language pathologists (SLPs) can furnish brief online assessment and management services, virtual check-ins, and remote evaluation services as clinical practitioners. (Beyond the temporary flexibilities implemented in response to the PHE, these same practitioners cannot provide “telehealth” services because they are not included in the statutory definition of “distant site practitioner” for telehealth services.)

Audio-Only E/Ms

While CMS does not propose to extend the codes for audio-only E/Ms beyond the COVID-19 PHE, CMS is seeking comment on developing coding and payment for an audio-only service similar to a virtual check in, but that would have a longer unit of time and a higher value/payment rate. CMS is also soliciting stakeholder feedback on whether such a code should be adopted permanently or only for the year after the end of the COVID-19 PHE.

Evaluation and Management (E/M) Code Changes

Like in previous editions of the Fee Schedule, CMS continued its work aiming to simplify billing and coding requirements for office and outpatient visits. The agency plans to align its E/M visit coding and documentation policies with changes laid out by the CPT Editorial Panel for office/outpatient E/M visits, beginning January 1, 2021.

“We are proposing a refinement to clarify the times for which prolonged office/outpatient E/M visits can be reported, and are proposing to revise the times used for ratesetting for this code set,” the agency said in a fact sheet.

The American Medical Association (AMA) issued a statement supporting the E/M modifications that implement significant increases to the payment for office visits.

However, these office visit payment increases, and a multitude of other new CMS proposed payment increases, are required by statute to be offset by payment reductions to other services. This results in an “unsustainable” reduction of nearly 11% to the Medicare conversion factor, AMA said.

“For this reason, the AMA strongly urges Congress to waive Medicare’s budget neutrality requirement for the office visit and other payment increases. Physicians are already experiencing substantial economic hardships due to COVID-19, so these pay cuts could not come at a worse time,” said AMA President Susan R. Bailey, M.D.

Additionally, in the 2020 Fee Schedule Final Rule, CMS established add-code GPC1X for office/outpatient E/M visit complexity with an effective date of CY 2021. Since the code was established, CMS has received stakeholder feedback that the code definition is unclear, as are the rules on when it is appropriate to report the code. Stakeholders have also expressed concerns regarding CMS’s utilization assumptions that specialties that predominantly furnish the kind of care described by the code would bill it with every visit. Utilization assumptions are meaningful since they affect the overall budget neutrality adjustment and, in turn, the physician conversion factor.

In this proposed rule, CMS requests more specific information regarding what aspects of the definition of HCPCS add-on code GPC1X are unclear, how they might address those concerns, and how they might refine their utilization assumptions for the code.

CY 2021 Conversion Factor (CF) Would Decrease to $32.2605, a Reduction of More Than 11%

The 2021 proposed physician CF is $32.2605. This represents a decrease of $3.83 from the 2020 conversion factor of $36.0896. This proposed negative adjustment results from a statutorily mandated budget neutrality adjustment to account for changes in work RVUs. The change in work RVUs is driven largely by updates to E/M services that were finalized in the CY 2020 Final Rule, but that are not effective until January 1, 2021, as well as other proposed changes in work. Absent reversal of the E/M work RVU changes, congressional action would be required to avoid a reduction in the conversion factor in CY 2021. Some stakeholders are urging Congress to suspend the budget neutrality adjustment for E/M changes effective CY 2021.

Impact by Specialty Ranges from -11% to +17%

Actual payment rates are affected by a range of proposed policy changes related to physician work, PE and malpractice RVUs. CMS summarizes these changes in Table 90 in the proposed rule. Impact by practice would vary based on service mix. Specialty impacts range from -11% for radiology and nurse anesthetists/anesthesiologist assistants, to +17% for endocrinology. The proposed range of impact by specialty has increased substantially relative to previous rulemaking cycles. In the CY 2020 PFS, for example, impact by specialty ranged from -4% to +3%.

While some of the differences in specialty impact result from proposed changes to individual codes, the wide range in specialty impact is largely due to E/M payment changes slated to begin in 2021 and the statutory requirements around budget neutrality. Specialties that do not generally bill office/outpatient E/M visits would experience the greatest decreases, while specialties and practices that bill higher level established patient visits would see the greatest increases, as those codes were revalued higher relative to the rest of the office/outpatient E/M code set.

Scope of Practice and Related Issues

CMS proposes to permanently permit nurse practitioners, clinical nurse specialists, physician assistants and certified nurse-midwives to supervise the performance of diagnostic tests. In addition, CMS is proposing to permanently grant physical and occupational therapists the discretion to delegate the provision of maintenance therapy services to a therapy assistant.

05Quality Payment Program (QPP) Updates

One of the major announcements was that CMS intends to delay the MIPS Value Pathways (MVPs) until at least 2022. Last year, CMS finalized its intent to overhaul MVPs which will group measures from the quality, cost, and improvement activity categories based on medical condition or specialty. MVPs were slated to take effect in 2021, but few details surrounding their implementation had been finalized. As a relief for many providers, CMS proposed to delay the implementation of MVPS until 2022 at the earliest. In the meantime, CMS proposed guiding principles and criteria for how they will work with stakeholders to create new MVP options.

Furthermore, CMS proposed key changes to ACO reporting and scoring policies. CMS proposed to sunset the CMS Web Interface, beginning in 2021. Currently, ACOs use the CMS Web Interface to report quality measures under both their ACO contract and for MIPS. This proposal is consistent with overall efforts to reduce the number of measures reported by ACOs and keep MIPS aligned with MSSP reporting requirements.

CMS also wants to eliminate the MIPS APM scoring standard beginning in 2021. It would be replaced by the APM Performance Pathway (APP). The APP takes a similar approach to MVPs in that it aims to include a fixed set of measures for each performance category. Similar to MIPS APM scoring standard, cost will be weighted at 0% in the APP.

CMS also included several policies to help clinicians avoid penalties. For the 2020 performance period only, the total possible points available through the complex patient bonus points will increase to 10 points from 5 points. The proposal also addresses APM entities that experience extreme and uncontrollable circumstances—they can submit an application to reweight MIPS performance categories beginning with the 2020 performance period. Additionally, for 2021, the proposal sets the performance threshold to avoid the MIPS penalty at 50 points, a 5-point increase rather than a planned 15-point increase to 60 points.

Finally, for MIPS participants, the Quality component is now 40% of the score, the Cost component is 20% of the score, the Improvement Activities is 15% of the score, and Promoting Interoperability is 25% of the score.