CMS has released the CY 2021 proposed Physician Fee Schedule (PFS). This proposed rule includes policies for payment to physicians as well as Medicare Part B policies.

Comments on the proposed rule are due on October 5, 2020.

CMS Likely to Finalize Medicare Physician Fee Schedule Provisions in December

Typically, CMS releases its Medicare Physician Fee Schedule proposed rule on July 1, allows for a 60-day public comment period, and finalizes the rule on November 1, which allows 60 days before the provisions take effect on January 1 of the new calendar year. CMS states that due to its decision to prioritize efforts in support of containing and combatting the COVID-19 public health emergency (PHE), and devoting significant resources to that end, it is unable to complete the work needed on the PFS payment rule in accordance with its usual schedule for this rulemaking. Because of this, CMS is claiming an exception to the 60-day requirements of the Congressional Review Act because it says it has found “good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the rule shall take effect at such time as the agency determines.” CMS’ planned 30-day delay would mean that the final Medicare Physician Fee Schedule rule would be published in early December. This will give physicians and other providers, who are on the front lines of fighting the COVID-19 pandemic and affected by the public health emergency, little time to adapt to any changes made by the rule before they take effect on January 1, 2021.

CMS to Tweak RVU Calculations, Proposes Decreased Conversion Factor

Physicians and other health professionals are paid under Medicare Part B for services that include office visits, surgical procedures, and other diagnostic and therapeutic efforts. To determine payment, Medicare uses a physician fee schedule that is based on the relative resources typically used to furnish the service. These relative value units (RVUs) are applied to each service for physician work, practice expense, and malpractice.

CMS proposes a conversion factor of $32.26, which is a decrease of $3.83 from the CY 2020 PFS conversion factor of $36.09. This decrease is due to the budget neutrality adjustment required by law to account for changes in RVUs. CMS also proposes technical changes and asks for further comment as to how practice expense (PE) is calculated for the purposes of the physician fee schedule.

Additional Telehealth Services to be Covered by Medicare in 2021; Some Telehealth Policies to End After COVID-19 Public Health Emergency

In the March 31st interim final rule (IFC), CMS added services to the Medicare telehealth list for the duration of the COVID-19 PHE. CMS is now proposing to make some of these services permanent while maintaining a temporary status for others. For the services that CMS does not permanently add to the Medicare telehealth list, CMS proposes to create a new temporary category, Category 3. This will allow the agency to collect public comments on whether to add these services permanently in future PFS annual rulemaking, without jeopardizing beneficiary access to beneficial telehealth services during the COVID-19 PHE.

Changes to the Medicare telehealth services list are made with the annual PFS rulemaking process. When a request to add a service to the list is submitted, Medicare assigns it to one of two categories. Category 1 is for services similar to consultations and office visits currently on the list and Category 2 is for services that are not similar to those currently on the list. CMS proposes to add the following services to the list on a Category 1 basis:

• 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)

CMS is proposing to add the following services to Medicare telehealth list on a Category 3 basis:

• 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)

A variety of services included temporarily on the Medicare telehealth list due to the COVID-19 PHE are not being proposed for inclusion as either Category 1 or Category 3. These include codes related to initial nursing facility visits, ESRD monthly capitation payment codes, radiation treatment management, and home visits for new patients among others.

Additionally, CMS specifically notes they are not proposing to continue payment for audio-only telephone visits beyond the PHE. After the conclusion of the PHE, telehealth services will once again be required to be furnished using an interactive two-way video and audio telecommunications system. However, CMS is seeking comments on whether the audio-only services should be made permanent or whether CMS should develop coding and payment for a similar virtual check-in for a longer unit of time.

Medicare also pays for some services that use telecommunications technology but are not considered Medicare telehealth services (e.g., virtual check-ins) because they are not the kind of services that are ordinarily furnished face-to-face. CMS is looking to expand the list of services that may qualify as communication technology-based services and seeks input on burdens that prevent providers from billing for these services.

Through the waiver authority of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), CMS removed the geographic and site of service originating site restrictions for Medicare telehealth services. The proposed rule does not include any provisions to make these flexibilities permanent outside of rural areas because CMS is limited by statute and cannot permanently expand the list of telehealth providers. CMS believes that making these flexibilities permanent requires an act of Congress.

Physicians at Teaching Hospitals Could Use Telehealth with Residents

CMS is proposing to allow physicians teaching residents in a teaching hospital to use telehealth technology to provide the direction, management and review that is required. The rule also proposes expanded billing flexibilities for residents providing services in an inpatient setting at a teaching hospital. These include higher level E/M visits and services to Medicare beneficiaries that are otherwise outside the scope of the GME program. CMS is asking for comments on the proposal to include whether these flexibilities should be temporary through the end of the PHE or should be made permanent.

CMS Proposes to Revalue Services Similar to E/M Services

Office visits for physicians and other health professionals are paid using evaluation and management (E/M) codes that are based on complexity, site of service, and whether the patient is new or established. In total, E/M visits billed using these CPT codes make up about 40 percent of allowed charges for PFS services. In the CY 2020 PFS Final Rule, CMS finalized a policy to adopt new coding, preface language, and an interpretive guidance framework for E/M coding consistent with recommendations from the AMA’s CPT Editorial Panel. CMS solicits comments regarding how they might clarify the definition of HCPCS add-on code GPC1X that was previously finalized for office/outpatient E/M visit complexity and whether they should refine the utilization assumptions for this code.

CMS also proposes to revalue services that include, or are similar to, E/M services:

• End-Stage Renal Disease (ESRD) Monthly Capitation Payment (MCP) Services
• Transitional Care Management (TCM) Services
• Maternity Services
• Cognitive Impairment Assessment and Care Planning
• Initial Preventive Physical Examination (IPPE) and Initial and Subsequent Annual Wellness (AWV) Visits
• Emergency Department Visits
• Therapy Evaluations
• Psychiatric Diagnostic Evaluations and Psychotherapy Services

CMS Proposes to Clarify and Expand Access to Remote Physiological Monitoring Services

In prior rulemakings, CMS added reimbursement for development and management of a plan of treatment based upon patient physiologic data in 2020,  and for 2021 is adding payment for prolonged face-to-face and/or non-face to face E/M work related to an office/outpatient E/M visit  in addition to their other care management codes.

Specifically, CMS is proposing to make two temporary changes in response to the COVID-19 public health emergency permanent:

1. Allow consent to be obtained from the patient at the time the RPM services are furnished
2. Allow auxiliary personnel, including non-clinical staff, to furnish the services described by CPT 99453 and 99454 under the general supervision of the billing physician or non-physician practitioner.

In addition, for the COVID-19 PHE, CMS is allowing RPM codes to be billed for a minimum of 2 days of data collection over a 30-day period, rather than the required 16 days of data collection over a 30-day period as provided in the CPT code descriptors. However, after the COVID-19 PHE ends, CMS will again require 16 days of data collection over a 30-day period to bill the code.

CMS is seeking comments on whether the current RPM coding accurately and adequately describes the full range of clinical scenarios where RPM services may be of benefit to patients. For example, CPT codes 99453 and 99454 currently require use of a medical device (as defined by the FDA) that digitally collects and transmits 16 or more days of data every 30 days for the codes to be billed. CMS is interested in understanding whether one or more codes that describe a shorter duration, for example, 8 or more days of remote monitoring within 30 days, might be useful.

CMS is also seeking comments on how RPM services are used in clinical practice, and how they might be coded, billed and valued under the Medicare PFS.

Expanded Transitional Care Management Billing Proposed

CPT Codes 99495 and 99496 describe management of a patient’s transition from acute care or certain outpatient stays to a community setting, with a face-to-face visit, once per patient within 30 days post-discharge. CMS maintains a list of 57 codes that cannot be billed concurrently with those codes because of potential duplication of those services. CMS is proposing to remove 15 codes from that list. One of the codes is for complex chronic care management services. The rest of the codes relate to services furnished to patients with end-stage renal disease (ESRD).

CMS Proposes New Code for Behavioral Health Management Under its Psychiatric Collaborative Care Model (CoCM)

Under its Psychiatric Collaborative Care Model,^[1] CMS is proposing to add a new code, GCOL1, to permit billing for shorter increments of behavioral health care manager time than under the codes currently used to bill for these services. The new code would describe initial or subsequent psychiatric collaborative care management, first 30 minutes in a month of behavioral health care manager activities, in consultation with a psychiatric consultant, and directed by the treating physician or other qualified health care professional.

CMS Proposes Changes to Data Reporting Report, No Payment Reduction for CDLTs in CY 2021

Currently, CMS reimburses for Clinical Diagnostic Laboratory Tests (CDLTs) under the Clinical Laboratory Fee Schedule (CLFS). These payments are based on the weighted median of private payer rates during a designated reporting period. As a result of COVID-19, CMS proposes to set the next data reporting period from January 1, 2022, to March 31, 2022, and will use data collected from January 1, 2019, through June 30, 2019.

The Protecting Access to Medicare Act (PAMA), states that Medicare payment for CDLTs is reduced by 10 percent in CY 2018 through CY 2020 and by 15 percent in CY 2021 through CY 2023. As a result of the COVID-19 pandemic, CMS proposes no reduction in Medicare payment for CDLTs in CY 2021 and will implement the 15 percent reduction in payment for CDLTs from CY 2022 through CY 2024.

CMS Solicits Comments on Extension of COVID-19 Flexibilities for Specimen Collection

On May 1, 2020, CMS issued the COVID-19 IFC finalizing the use of CPT code 99211 when billing physicians do not furnish an office or outpatient visit on the same day as a specimen collection for a COVID-19 test. CMS seeks comments on allowing physicians and NPPs use of this code for both new and established patients when specimens for COVID-19 testing are collected and seeks public comments on the continuation of this policy for a designated period or permanently.

Transition to MIPS Value Pathway under Quality Payment Program Delayed; Lower Performance Threshold Proposed due to COVID-19

In the annual PFS rulemaking, CMS includes its proposals for the Quality Payment Program, which includes two tracks: the Merit-based Incentive Payment System (MIPS) and Advanced Alternative Payment Models. MIPS includes four performance categories: quality, cost, improvement activities, and promoting interoperability. A total of 206 quality measures are proposed for the upcoming 2021 MIPS performance year.

CMS is proposing to set the 2021 performance year (2023 payment year) performance threshold at 50 points. This is a decrease from a proposal in CY 2020 rulemaking to set the 2021 performance threshold at 60 points. The threshold for exceptional performance will remain at 85 points. The proposed weights for each of the four performance categories for 2021 is:

• Quality: 40%
• Cost: 20%
• Promoting Interoperability: 25%
• Improvement Activities: 15%

This is a proposed five percent decrease in the weight of the quality category and a five percent increase in the cost category, as compared to CY 2020 policy. The weight of the promoting interoperability and improvement activities remains the same in CY 2021. CMS is also proposing to include services provided via telehealth in the quality and cost measurement.

In rulemaking for CY 2020, CMS finalized the creation of MIPS Value Pathways (MVPs), which were designed to align activities from the four MIPS performance categories around specialty, medical condition, or patient population. While CMS intended to begin transitioning to MVPS during the 2021 performance year, the agency is delaying this until 2022 at the earliest in response to the COVID-19 pandemic. CMS is proposing to update the MVP guiding principles to say that MVP measures should be selected to include the patient voice wherever possible; this was done in response to suggestions from last year’s request for comments related to the MVP framework.

CMS is proposing a new pathway for APM participants, called the APM Performance Pathway (APP), that will be in effect beginning January 1, 2021. This pathway, which will consist of a fixed set of measures for each performance category, will be an option for MIPS eligible clinicians who are participants in MIPS APMs and is meant to align with MVPs in the MIPS track. CMS believes the APP will provide a predictable and consistent MIPS reporting standard to reduce burden and encourage APM participation.

Also for APMs, CMS is proposing to eliminate the APM scoring standard for the 2021 performance year to allow APM participants flexibility in how they participate in MIPS whether as individuals, groups, virtual groups, or APM entities.

CMS to Codify Existing HCPCS Coding Policy for Certain Drugs

CMS is proposing to codify its existing policy to continue assigning certain drug products to existing multiple source drug HCPCS codes. Drugs are assigned to existing codes when the billing code descriptor describes the product and when the products description, including labeling and uses, are similar to products already assigned to that code.

Physicians to be Given Ability to Supervise via Telehealth in Response to COVID-19 Public Health Emergency

CMS is proposing to change the existing definition of “physician direct supervision” which requires the physical proximity of the physician or practitioner. For the remainder of the COVID-19 PHE, CMS would allow the use of telehealth services, defined as “interactive audio/video real-time communications technology” to be considered direct supervision. This change would remain in effect until either December 31, 2020 if the PHE ends this year or December 2021 if the PHE ends after the first of the year. CMS is asking for comment on whether there should be limitations of this interim policy and for comments regarding fraud waste and abuse concerns.

CMS Proposes Removal of Nine National Coverage Determinations

CMS is proposing to remove nine National Coverage Determination (NCDs): Extracorporeal Immunoadsorption (ECI) using A Columns; Electrosleep Therapy; Implantation of Gastroesophageal Reflux Device; Apheresis (Therapeutic Pheresis); Abarelix for the Treatment of Prostate Cancer; Histocompatibility Testing; Cytogenetic Studies; Magnetic Resonance Spectroscopy; and FDG PET for Inflation and Infection.

CMS is seeking comments on this proposal and any additional NCDs that no longer reflect relevant or current medical guidance or practice.

Scope of Practice Changes Proposed for Multiple Provider Types; Medical Record Documentation Policy Clarified

The CY 2020 proposed PFS contains proposals to adjust scope of practice rules for various providers, including nurse practitioners, pharmacists, and therapy assistants.

CMS is also clarifying that physicians and nonphysician practitioners (NPPs), including therapists, can review and verify documentation entered into the medical record by members of the medical team for their own services as long as they are paid under PFS. Students also working under these physicians or practitioners, who furnish and bill their services to Medicare, can also document medical records as long as it is reviewed, signed and dated by the billing physician, practitioner, or therapist.

Nurse Practitioners and Other Providers to Perform Diagnostic Tests

CMS is proposing to make permanent the May 1st COVID-19 IFC policy that allows nurse practitioners (NPs), clinical nurse specialists (CNSs), physician assistants (PAs), and certified nurse-midwives (CNMs) to supervise the performance of diagnostic tests. This extends their role to not only order and furnish diagnostic tests but to also supervise others. CMS notes that practitioners will still have to follow state scope of practice rules and applicable state laws.

CMS Reiterates Policy for Pharmacists Providing Incident to Services

CMS is reiterating the clarification the agency initially made in the May 1st COVID-19 IFC that states that pharmacists fall within the regulatory definition of auxiliary personnel under the “incident to” regulations. This means that a pharmacist may provide services in connection to the overall physician’s treatment plan under the appropriate level of supervision. Payment can only be under Medicare Part B. CMS reiterates that pharmacists must follow state scope of practice regulations and laws.

Policy Allowing Therapy Assistants to Furnish Maintenance Therapy to be Made Permanent

CMS is proposing to make permanent, beginning in CY 2021 the policy for maintenance therapy adopted under the COVID-19 IFC. This allows physical therapists (PTs) and occupational therapists (OTs) to delegate performance of clinically appropriate maintenance therapy services to a therapy assistant, which includes a physical therapist assistant (PTA) or an occupational therapy assistant (OTA). This would align the Part B policy with Part A payment for skilled nursing facilities and the home health benefit. OTAs and PTAs will be paid in the same manner as those who are already paid for rehabilitative therapy services. CMS also hopes this frees up the PTs and/or OTs to conduct other services.

CMS Seeks to Reduce Reporting Burden in Medicare Shared Savings Program

CMS is proposing changes to the Medicare Shared Saving Program (MSSP) quality performance standard and quality reporting requirements for the performance years beginning on January 1, 2021 in an effort to reduce burden on ACOs and allow them to focus on patient outcomes.

For performance year 2021, Accountable Care Organizations (ACOs) participating in the Shared Savings Program would be required to report quality measure data via the new APM Performance Pathway (APP) under the QPP, instead of the CMS Web Interface. ACOs would only need to report one set of quality metrics to meet requirements for MIPS and MSSP. In addition, the total number of measures included in the ACO quality measure would be reduced from 23 to 6.

CMS is also proposing to raise the performance standard for these ACOs and strengthen compliance policies by broadening the conditions under which CMS may terminate an ACO’s participation agreement when an ACO demonstrates a pattern of failure to meet the quality performance standard. As part of the extreme and uncontrollable circumstances policy, CMS is proposing to waive the requirement for performance year 2020 to field a CAHPS survey because of the impact of COVID-19.

CMS to Align Promoting Interoperability Program Measures with MIPS

In an effort to reduce burden for Medicaid Eligible Professionals (EPs), CMS is proposing to amend the list of available electronic clinical quality measures (eCQMs) for CY 2021 to align with the eCQMs available for MIPS eligible clinicians. CMS will maintain its CY 2020 policies including allowing Medicaid EPs to report on any six eCQMs that are relevant to their scope of practice and requiring EPs in the Medicaid Promoting Interoperability Program to report on at least one outcome measure.

 

This Applied Policy® First Night Summary was prepared by Giana Mandel with support from the Applied Policy team of health policy experts. If you have any questions or need more information, please contact her at gmandel@appliedpolicy.com or at 202-558-5272.

[1] For more information, see American Psychiatric Association’s website:  https://www.psychiatry.org/psychiatrists/practice/professional-interests/integrated-care/get-trained