Telehealth in the 2023 Medicare Physician Fee Schedule: New Telehealth Codes, Post-PHE Transition Period, and the Future of Remote Direct Supervision
On July 7, 2022, the Centers for Medicare and Medicaid Services (“CMS”) released the 2023 Medicare Physician Fee Schedule Proposed Rule (the “Proposed Rule”), and while there are few significant changes during the COVID-19 public health emergency (“PHE”), CMS extended several telehealth flexibilities through the 151 days following the expiration of the PHE (“151-day Post-PHE Transition Period") and left the door open for comments related to permanent extension of remote direct supervision.
Specifically, the Proposed Rule would add several services to the Medicare Telehealth List (most on a temporary basis through the end of 2023) and adjust the use of modifiers when submitting telehealth claims following the end of the PHE.
Medicare Adds Several Telehealth Codes on a Category 1 and Category 3 Basis and Declines to Add Telephone E/M Services on a Category 3 Basis
Every year, CMS evaluates requests to add services to the Medicare Telehealth Services List (“List”) on a Category 1, 2, or 3 basis. Categories 1 and 2 represent permanent telehealth codes, while Category 3 codes are temporarily reimbursed until the end of calendar year 2023.
If adopted, the Proposed Rule states that services included on the List on a temporary basis during the PHE that have not been added to the List on a permanent or Category 3 basis will only be reimbursed until the end of the 151-day Post-PHE Transition Period.
CMS rejected all external requests to add services to its List on a Category 1 or Category 2 basis because they did not meet CMS criteria.
However, CMS proposed to add the following (new) prolonged care services to the List on a Category 1 basis:
GXXX1 Prolonged inpatient or observation services by physician or other QHP
GXXX2 Prolonged nursing facility services by physician or other QHP
GXXX3 Prolonged home or residence services by physician or other QHP
CMS further declined to add Telephone Evaluation and Management (“E/M”) CPT Codes 99441, 99442, and 99443 to the List on a Category 3 basis because, using its Category 3 criteria, it believes these services likely do not represent clinical benefit when furnished via telehealth for the following reasons:
audio-only telehealth services are only appropriate for telemental conditions and there are already associated E/M codes on the List to report such telemental services
for services other than telemental care, two-way audio-video technology is most appropriate (outside of the PHE); and
the Social Security Act requires telehealth services to be analogous to in-person care and essentially a substitute for a face-to-face encounter, and as “audio-only” services, these telephone codes represent non-face-to-face services.
Therefore, if this proposal is finalized, these codes will be available during the 151-day Post-PHE Transition Period, but will be removed on the 152nd day, at which point CMS will assign these codes a “bundled” status.
CMS proposed to add the following 53 services to the List on a Category 3 basis.
The services proposed for addition on a Category 3 basis represent the following categories of care: therapy, neurostimulator pulse generator/transmitter, emotional/behavior assessment, behavioral health, ophthalmologic, audiology, home ventilator management, speech and language function, and developmental screening.
90875 Psychophysiological therapy
90901 Biofeedback train any meth
92012 Eye exam estab pat
92014 Eye exam & tx estab pt 1/>vst
92507 Speech/hearing therapy
92550 Tympanometry & reflex thresh
92552 Pure tone audiometry air
92553 Audiometry air & bone
92555 Speech threshold audiometry
92556 Speech audiometry complete
92557 Comprehensive hearing test
92563 Tone decay hearing test
92567 Tympanometry
92568 Acoustic refl threshold tst
92570 Acoustic immitance testing
92587 Evoked auditory test limited
92588 Evoked auditory tst complete
92601 Cochlear implt f/up exam <7
92625 Tinnitus assessment
92626 Eval aud funcj 1st hour
92627 Eval aud funcj ea addl 15
94005 Home vent mgmt supervision
95970 Alys npgt w/o prgrmg
95983 Alys brn npgt prgrmg 15 min
95984 Alys brn npgt prgrmg addl 15
96105 Assessment of aphasia
96110 Developmental screen w/score
96112 Devel tst phys/qhp 1st hr
96113 Devel tst phys/qhp ea addl
96127 Brief emotional/behav assmt
96170 Hlth bhv ivntj fam wo pt 1st
96171 Hlth bhv ivntj fam w/o pt ea
97129 Ther ivntj 1st 15 min
97130 Ther ivntj ea addl 15 min
97150 Group therapeutic procedures
97151 Bhv id assmt by phys/qhp
97152 Bhv id suprt assmt by 1 tech
97153 Adaptive behavior tx by tech
97154 Grp adapt bhv tx by tech
97155 Adapt behavior tx phys/qhp
97156 Fam adapt bhv tx gdn phy/qhp
97157 Mult fam adapt bhv tx gdn
97158 Grp adapt bhv tx by phy/qhp
97537 Community/work reintegration
97542 Wheelchair mngment training
97530 Therapeutic activities
97763 Orthc/prostc mgmt sbsq enc
98960 Self-mgmt educ & train 1 pt
98961 Self-mgmt educ/train 2-4 pt
98962 Self-mgmt educ/train 5-8 pt
99473 Self-meas bp pt educaj/train
0362T Bhv id suprt assmt ea 15 min
0373T Adapt bhv tx ea 15 min
**For more information on how CMS determines which telehealth services meet criteria for Category 1, 2, and 3 codes, please see our article on the Proposed 2022 MPFS.
Do you believe CMS should include additional codes on the List on a Category 1 or 2 basis? Should CMS extend the coverage of Category 3 services beyond 2023? CMS will accept requests to add services to the list for calendar year 2024 through February 10, 2023.
CMS Will Keep Certain Flexibilities in Place During the 151-day Post-PHE Transition Period
CMS implemented several temporary policies during the PHE and is proposing to allow certain PHE-related flexibilities to remain in effect during the 151-day Post-PHE Transition Period. These proposed extended flexibilities include:
The temporary expansion in the scope of telehealth originating sites to include any site in the United States where the beneficiary is located at the time of the telehealth service, including an individual's home.
The temporary expansion of eligible telehealth practitioners to include occupational therapists, physical therapists, speech-language pathologists, and audiologists.
The temporary telehealth payment policies for Rural Health Clinics (“RHCs”) and Federally Qualified Health Centers (“FQHCs”). Telehealth services furnished by these entities would continue to be reimbursed at rates similar to the national average rates for comparable telehealth services.
Delay of the in-person visit requirements for audio-only telemental health services. CMS will delay the requirement for an in-person visit with the physician/practitioner (and FQHCs/RHCs) within 6 months prior to an initial mental health telehealth service, and again at subsequent intervals for purposes of diagnosis/evaluation/treatment of a mental health disorder.
The temporary coverage of certain audio-only telehealth services provided during the PHE. As stated above, CMS will continue to provide separate reimbursement for certain audio-only Telephone E/M codes through the 151-day Post-PHE Transition Period. CMS acknowledges that, under certain circumstances, audio-only telecommunications technology can be used to furnish telemental services to patients in their homes after the PHE ends; however, the agency states that a two-way, audio-video technology requirement will generally apply to telehealth services after the PHE.
CMS Declines Making Virtual “Direct Supervision” Permanent?
CMS issued a temporary exception to apply during the PHE to allow immediate availability for direct supervision through virtual presence. CMS is proposing to sunset this flexibility on December 31 of the year in which the PHE ends, at which point direct supervision requirements could only be satisfied in person. CMS’ hesitance stems, in part, from patient safety concerns that the agency believes could result from making this flexibility permanent. This proposal is huge for digital health companies and provider groups whose business models rely heavily on the ability of billing practitioners to satisfy direct supervision requirements virtually.
CMS is asking stakeholders for information on whether to permanently allow remote direct supervision for some or all telehealth services.
CMS Proposes Guidance for Use of Modifiers for Telehealth Claims
During the 151-day Post-PHE Transition Period. If finalized, Medicare telehealth services performed during the 151-day Post-PHE Transition Period, in alignment with extensions of telehealth-related flexibilities in the Consolidated Appropriations Act (“CAA”), will continue to be processed for payment as Medicare telehealth claims when accompanied with the modifier “95”. CMS further proposes that billing practitioners can continue to report the place of service (“POS”) indicator that would have been reported if the service was performed in person during this period.
On or After the 152nd Day. For telehealth services performed on or after the 152nd day after the end of the PHE, the Proposed Rule states that telehealth claims will no longer require modifier “95”, but will require the appropriate POS indicator identifying the place where the service was furnished.
CMS further proposes that, beginning January 1, 2023, a physician/other qualified health care practitioner billing for telehealth services furnished using audio-only communications technology shall append modifier “93”. CMS has instructed RHCs, FQHCs, and opioid treatment programs (“OTPs”) to append modifier “FQ” for allowable audio-only services furnished in those settings; however, to remain consistent with audio-only claims furnished under the Physician Fee Schedule, CMS is proposing to require RHCs, FQHCs, and OTPs to additionally use modifier 93 when billing for eligible mental health services furnished via audio-only technology. Lastly, CMS continues to require supervising practitioners to append the modifier “FR” on any applicable telehealth claim when such practitioner must be present through an interactive, real-time, audio-video telecommunications link.
Opioid Treatment Programs (“OTPs”) Initiating Treatment with Buprenorphine via Telehealth
Outside of the PHE, SAMHSA requires a physical evaluation before a patient begins treatment at an OTP. During the PHE, OTPs may initiate treatment with buprenorphine via a live audio-video or audio-only interaction without an initial in-person physical evaluation if a program physician/primary care physician/authorized healthcare professional under supervision of a program physician determines that an adequate evaluation of the patient can be accomplished via telehealth.
CMS is proposing to allow OTPs, post-PHE, (1) to initiate treatment with buprenorphine via two-way interactive audio-video, as clinically appropriate, and in compliance with all applicable requirements and (2) permit the use of audio-only technology to initiate treatment with buprenorphine in cases where audio-video is not available to the beneficiary.
Should CMS allow OTPs to initiate treatment with buprenorphine using telehealth? Should CMS allow periodic assessments to continue to be furnished via audio-only post-PHE for patients who are receiving treatment via buprenorphine, and should this flexibility also continue to apply to patients receiving methadone or naltrexone?
Submitting Comments to the Proposed 2023 Medicare Physician Fee Schedule
The questions and issues above underscore the importance of providing feedback to CMS’ regarding the 2023 Proposed MPFS during the public comment period, which ends at 5:00 pm Eastern Time 60 days from the date the Proposed Rule is filed for public inspection in the Federal Register (currently scheduled to be published on July 29, 2022).
Nixon Gwilt has a demonstrated history of assisting clients with submitting public comments and achieving desired results. Contact us to help you draft yours by August 12, 2022 to guarantee your spot in our queue!