CMS’ 2021 Proposed Medicare Physician Fee Schedule Rule: 5 key takeaways

Acknowledging the impact of the COVID-19 pandemic, CMS has limited the number of significant changes it planned to make to the Quality Payment Program this upcoming year.  

CMS has delayed implementation of the Merit-based Incentive Payment System (MIPS) value pathways program (MVP) until the 2022 performance period. In the meantime, CMS announced the beginning of a new MIPS Alternative Payment Model Performance Pathway (APP) as an optional and complementary MIPS reporting and scoring pathway for participants in MIPS APMs. As CMS summarized in detail in the proposed 2021 Quality Payment Program Proposed Rule Overview Fact Sheet,  participants in various MIPS APMs would be able to report on a single set of quality measures each year that represent a true cross-section of their participants’ performance:

• Similar to a MIPS Value Pathway, the APP would be composed of a fixed set of measures for each performance category.
• The Cost performance category would be weighted at 0 percent, as all MIPS APM participants already are, for cost containment under their respective APMs.
• The Improvement Activities performance category score would automatically be assigned based on the requirements of the MIPS APM in which the MIPS eligible clinician participates; in 2021, all APM participants reporting through the APP will earn a score of 100 percent.
• The Promoting Interoperability performance category would be reported and scored at the individual or group level, as is required for the rest of MIPS.
• The Quality performance category would be composed of six measures that are specifically focused on population health and that will likely be widely available to all MIPS APM participants (see pg. 32 of the appendix in the Proposed Rule Fact Sheet above). The APP quality measures would also count for MIPS Quality performance category.

CMS further proposed reducing the performance threshold for the 2021 MIPS performance period (2023 payment year) from 60 points to 50 points and is soliciting comments on the decrease. Under the proposed rule, the Cost Performance category would change to make up 20 percent (5 percent increase) and the Quality Performance category weight would be 40 percent (5 percent decrease) of a MIPS eligible clinician’s final score for the 2023 MIPS payment year. Additionally, among the proposed updates for the Cost Performance category, CMS would update existing measure specification to include telehealth services that are directly applicable to existing episode-based cost measures and the Total Per Capita Cost (TPCC) measure.

CMS also discussed the applicability of the program’s extreme and uncontrollable circumstances policy to mitigate shared losses for the period of the COVID-19 public health emergency starting in January 2020.

CMS proposed reducing the MPFS Conversion Factor by 10.61 percent for 2021, from $36.09 to $32.26, when accounting for the budget neutrality adjustment. The reallocation of Medicare payments resulting from this payment adjustment could benefit general practitioners to the detriment of certain specialists. For example:

CMS further estimated that the proposed rule would increase payments to cardiologists by one percent from 2020 to 2021 through updates to work, practice expense and malpractice RVUs, depending on the mix of services provided in a practice. 

CMS proposed “a refinement” of its coding and documentation policies for E/M office and outpatient visits, as well as changing how such visits are paid for, taking a step back from what it had previously proposed in its 2019 and 2020 rules.

CMS’s stated goal is to “clarify the times for which prolonged office/outpatient E/M visits can be reported, and the times used for rate setting for this code set.” Under the proposed rule, payment would be made for each level of service, rather than paying a blended rate for level 2-4 visits.  While CMS’s asserted plan is to increase payment rates for E/M visits, such an increase must, by statute, be offset by payment reductions to other services.  According to a statement by the President of American Medical Association, this would result in an "unsustainable" reduction of nearly 11 percent to the Medicare conversion factor.

CMS proposed to make certain RPM policies implemented during the COVID-19 public health emergency permanent and provides clarifications to RPM payment policies under CPT codes 99453, 99454, 99091, 99457, and 99458.

First, CMS confirms that after the COVID-19 public health emergency, RPM services will be available to patients with established physician-patient relationships only. Also, after the public health emergency, CMS will maintain the current requirement that 16 days of data each 30 days must be collected and transmitted to meet the requirements under CPT codes 99453 and 99454.

Second, CMS proposed the following permanent policies previously implemented during the COVID-19 public health emergency on an interim basis:

• To allow consent to be obtained at the time that RPM services are furnished.
• To allow auxiliary personnel to furnish CPT codes 99453 and 99454 services under a physician’s supervision. Auxiliary personnel include contracted employees.
• To allow services to chronic and acutely ill patients.

Third, CMS provided the following three key clarifications:

• RPM services are considered to be E/M services and can be ordered and billed only by physicians or nonphysician practitioners who are eligible to bill Medicare for E/M services.
• The medical device supplied to a patient as part of CPT code 99454 must be a medical device as defined by Section 201(h) of the Federal Food, Drug, and Cosmetic Act. The device must be reliable and valid, and the data must be electronically (i.e., automatically) collected and transmitted rather than self-reported. Notably, that medical device is not required to be cleared by the FDA.
• For CPT codes 99457 and 99458, an “interactive communication” means a conversation that occurs in real-time and includes synchronous, two-way interactions that can be enhanced with video or other kinds of data as described by HCPCS code G2012.
• Because RPM services fall under the umbrella of E/M services, only those providers who are eligible to furnish E/M services may bill for RPM services.

CMS is specifically seeking comment from the medical community and other members of the public on whether the current RPM codes accurately and adequately describe the full range of clinical scenarios where RPM services may be of benefit to patients. 

CMS also proposed new services to the Medicare telehealth list and proposed a new category for adding telehealth services. Category 3 telehealth services were added to the Medicare telehealth list during the COVID-19 public health emergency and have not yet been supported through documentation to illustrate clinical benefit, which is necessary to be added under Category 2 telehealth services.

Among the proposed additions to the Medicare Telehealth Services List under Category 1 (similar to currently listed Medicare telehealth services): more complex visits that allow offices to bill for more advanced office/outpatient E/M codes (GPC1X), group psychotherapy (90853), neurobehavioral status exam (96121), prolonged office or other outpatient E/M services (99XXX), assessment and care planning for patients with cognitive impairment (99483), and domiciliary, rest home, or custodial care services (99335) and home visits (99347 and 99348). With regard to home visits, CMS explained adding domiciliary/home visits that contain the same elements and similar descriptors to the office/outpatient E/M visits allows for sufficient justification for being added to Category 1. Also, CMS clarified that because Medicare telehealth rules generally do not allow for patient homes to be originating sites, these services would be billed when furnished as telehealth services only for treatment of a substance use disorder or co-occurring mental health disorder.

Category 3 telehealth services would remain on the list through the calendar year in which the public health emergency ends, arguably giving the community enough time to submit documentation support of clinical benefit under category 2. These include domiciliary, rest home, or custodial care services for established patients (99336, 99337), emergency department visits (99281, 99282, 99283), nursing facilities discharge day management (99315, 99316), psychological and neuropsychological testing (96130, 96131, 96132, and 96133), and home visits for established patients (99349, 99350) for established patients. CMS is specifically soliciting comments on those category 3 services and the services that it had not added.

Additionally, CMS proposed to extend its policy to allow providers to use interactive audio/video real-time communications technology to provide virtual direct supervision through the later of the end of the calendar year in which the public health emergency ends or December 31, 2021. CMS solicited comments on whether any guardrails for this flexibility should be adopted to ensure patient safety as well as any restrictions to prevent fraud or inappropriate use.

CMS also clarified that Medicare telehealth rules (pertaining to the originating site, provider, modality, reimbursement code restrictions) do not apply when the beneficiary and the practitioner are in the same location even if audio/video technology assists in furnishing a service.

Finally, CMS confirmed that audio-only telephone evaluation and management services will not be reimbursable after the COVID-19 public health emergency. CMS is seeking comment on whether CMS should develop coding and payment for a service similar to the virtual check-in but for a longer unit of time and subsequently with a higher value. If so, CMS is seeking input from the public on the duration of the services, the resources for both work and practice expense associated with furnishing such services, and whether this should be a provisional policy to remain in effect until a year after the end of the PHE for the COVID-19 pandemic or if it should be PFS payment policy permanently.

CMS is requesting comments by October 5, 2020, and the final rule expected in the fall will be effective January 1, 2021.