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Medicare payment policies unshackled under CMS’ COVID-19 interim final rule

You’ll find upheaval, opportunity and a sneak peek at looming documentation changes as a new Medicare payment rule addressing the COVID-19 crisis, issued March 31, breaks with numerous longstanding policy measures.
The interim final rule -- Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-10 Public Health Emergency -- is an effort by CMS to ease restrictions for health care providers working under duress during the COVID-19 public health emergency (PHE).
The rule cements a trove of new and emerging policy changes in seeking to remove barriers that “inhibit innovative uses of technology and capacity,” according to the 299-page rule. Among the changes, CMS grants liberties and confirms fees for telehealth services, blurs the lines between “new” and “established” patients and opens up remote patient monitoring (RPM) services.

Also of note: CMS is simplifying the documentation requirements for virtual-based E/M services, a shift that serves as a prelude to the expected 2021 update that emphasizes medical decision-making (MDM) and time for E/M code level selection.
All changes announced in the interim final rule are effective March 31, 2020. Comments are due by June 1, 2020.
Updates and guidance from the rule
  • Use your “real” place of service (POS) for telehealth. Providers using telehealth under the 1135 waiver are to use their actual location POS – “the POS code that would have been reported had the service been furnished in person” – for telehealth claims rather than the 02 POS called for in previous guidance. “This will allow our systems to make appropriate payment for services furnished via Medicare telehealth which, if not for the PHE for the COVID-19 pandemic, would have been furnished in person, at the same rate they would have been paid if the services were furnished in person,” CMS states in the interim final rule.
  • “Phones” aren’t just phones. CMS clarifies what it means when it refers to interactive telecommunications devices, “now referred to colloquially as ‘phones.’” In order to avoid the “potential perception that this language might prohibit use of any device that could otherwise meet the interactive requirements for Medicare telehealth,” the agency is talking about “multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and distant site physician or practitioner.”
The agency also emphasizes that using non-public-facing technologies that may not be HIPAA-compliant, such as FaceTime or Skype, will not be penalized by the HHS Office for Civil Rights for the “the good faith provision of telehealth.”
  • Phone E/M codes payable, can be used on new patients. The telephone E/M codes for physicians (99441-99443) and non-physician practitioners (NPP) (98966-98968) have been considered noncovered, but that’s no longer the case. Medicare now considers them covered and payable services and will be paid according to RVUs established in the 2008 PFS final rule. Also, they can be provided to new as well as established patients, and, in the case of the NPP codes, by a wide variety of NPPs, including physical therapists.
Check-in and e-visits for new patients, NPPs. The patient-initiated “virtual check-in” codes (G2010, G2012) and e-visit codes (99421-99423, G2061-G2063) are also billable for new as well as established patients now and can be covered by most NPPs.
  • Remote physiological monitoring OK for new patients. On a temporary basis, CMS will expand Medicare coverage of remote physiological monitoring (RPM) services to new patients in addition to established patients. The agency explains: “Our goal … is to reduce exposure risks to the novel coronavirus for practitioners and patients and to increase access to services by eliminating as many obstacles as possible to delivering necessary services.” 
Providers will still need to get patient consent for RPM services, but CMS is relaxing the rules to allow you to obtain that consent “once annually, including at the time services are furnished,” at least for the duration of the COVID-19 public health emergency. “However, to enhance beneficiary protection, for both new and established patients, we suggest that the physician or other health care practitioner review consent information with a beneficiary, obtain the beneficiary’s verbal consent and document in the medical record that consent was obtained.”
CMS also clarified that as well as monitoring chronic conditions such as diabetes, high blood pressure and COPD, RPM services can be used to keep tabs on patients with acute conditions. For example, RPM would “allow a patient with an acute respiratory virus to monitor pulse and oxygen saturation levels using pulse oximetry,” the agency states. “Nurses, working with physicians, can check-in with the patient and then, using patient data, determine whether home treatment is safe, all the while reducing exposure risk and eliminating potentially unnecessary emergency department and hospital visits.”
  • Teaching MDs can supervise by interactive tech. Usually teaching physicians and residents are subject to strict supervisory regulations requiring heavy teaching physician involvement in the residents’ work. But in light of the emergency and the attendant need to reduce infections, CMS will relax and “allow residents to independently furnish services in their capacity as fully licensed physicians outside of the scope of their approved GME residency in the inpatient setting of the hospital at which they provide services.”
The presence of the teaching physicians will not be required during the key portions of all services billed under them, nor must they be immediately available. Instead, they may be considered “present through interactive telecommunications technology during the key portion of the service.”
This does not apply to all services. For example, “in the case of surgical, high-risk or other complex procedures, the teaching physician must be present during all critical portions of the procedure and immediately available to furnish services during the entire service or procedure,” CMS states.
Also, residents can perform E/M services at every level under the telecommuting teaching physician’s care. They also can perform diagnostic radiology and other diagnostic tests – though the teaching physician must still review the resident’s interpretation – as well as psychiatric encounters. They may perform telehealth on patients while the teaching physicians supervises by telecommunication. And where appropriate – such as in reading diagnostic tests – residents may perform some tasks while under COVID-19 quarantine and supervised by a telecommuting teaching physician.
  • Therapy codes added to telehealth list, but therapists can’t bill them. Medicare is adding dozens of physical therapy and occupational therapy codes to the list of payable telehealth codes, with one catch: Physical therapists, occupational therapists and speech-language pathologists remain ineligible to bill for telehealth services, CMS states in the interim final rule. That means therapists can’t get paid when they bill telehealth services directly.
The contradiction may be in part “because the new rules were written prior to the passage of the CARES Act,” the $2 trillion COVID-19 relief package that granted CMS the authority to use waivers to expand the range of providers permitted to conduct services through telehealth, explains the American Physical Therapy Association in a news update to its website. “To date, CMS has not extended telehealth authority to PTs, OTs, and SLPs. But with coding rules now in place, such an expansion would be easier to implement quickly,” the association predicts.
In the meantime, therapy practices that are owned by physician practices can still bill telehealth therapy services incident-to the services of a physician, but therapists in independent practice are unable to use telehealth therapy codes at all.
  • Shared Savings, MIPS program extreme and uncontrollable circumstances policy. Both the Shared Savings and Merit-Based Incentive Program (MIPS) data submission deadlines have been extended 30 days due to the emergency to April 30, 2020. MIPS eligible providers are automatically granted extreme and uncontrollable circumstances reporting exemptions; if do not submit their MIPS data by the extended deadline, their performance categories will be “reweighted to zero percent, resulting in a score equal to the performance threshold, and a neutral MIPS payment adjustment.” Providers in the Advanced APM program have a slightly more complicated formula, but in most cases if their entities do not report data they will also receive a baseline score.
Shared Savings program participants get a break in that the extreme and uncontrollable circumstances reporting extension, which usually applies only if the reporting period is not extended, will be applied to them despite the current extension. To calculate for their 2020 financial reconciliation, CMS “will reduce the amount of an ACO's shared losses by an amount determined by multiplying the shared losses by the percentage of the total months in the performance year affected by an extreme and uncontrollable circumstance, and the percentage of the ACO's assigned beneficiaries who reside in an area affected by an extreme and uncontrollable circumstance.”
  • Changes to CJR model postponed. Medicare is putting off proposed expansions to its Comprehensive Care for Joint Replacement (CJR) payment model until April 2021 at the earliest. Instead, CMS will extend this year’s CJR program until March 31, 2021. The program had been due to expire December 31. 
Surgeons should not be performing too many elective hip and knee replacements right now, the agency observes, though there are still Medicare patients who are in a CJR episode of care for an earlier replacement. And any new hip fractures that result in arthroplasty will fall under the CJR program as well. For that reason, CMS is extending its CJR “extreme and uncontrollable circumstances” policy, which is normally reserved for natural disasters, to apply to all hospitals in declared emergency areas due to COVID-19. That puts in place certain safeguards so that “participant hospitals are not held financially liable for [CJR] episode costs that escalate due to effects from the COVID-19 pandemic,” the agency states.
Blog Tags: Breaking news, CMS, COVID-19
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Please note: CMS clarified on the April 14, 2020 open door forum that telehealth services furnished by a PT/OT/SLP cannot be billed incident to the physician. Thus, therapy practices that are owned by physician practices cannot bill telehealth therapy services incident-to the services of a physician.


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