Analysis: CMS Gives Telehealth a Boost, But More is Needed

Remote Patient Monitoring Coverage

Of particular interest are changes to coverage for remote patient monitoring, a fast-growing service that combines telehealth and mHealth tools to enable providers to care for patients at home. According to a new post from the team of telehealth law experts at Foley & Lardner, the final rule “advances the ability of RPM services to drive revenue and improve the patient care experience,” but still contains uncertainties that had the team worried when CMS released the preliminary rule in August.

Among those concerns is the requirement of at least 20 minutes of interactive communication time between provider and patient over a calendar month, as opposed to interactive communication being a part of the 20 minutes of RPM care. The Foley & Lardner team and several others criticized that condition in the preliminary rule, saying it would hinder providers from billing for certain RPM services. CMS did amend that condition in the fact sheet accompanying the final rule but didn’t do so in the final rule, forcing everyone to wait until the final rule is published in the Federal Register on December 28 to see whether that change has been made.

Also, the final rule states that RPM services can be used by providers for treating established patients, but not new patients (that condition has been waived during the public health emergency). But CMS does allow providers to use real-time interactive audio-video platforms to meet the face-to-face requirement for evaluation and management (E/M) services, and it will generally bow to the states to set rules on using telehealth to establish a doctor-patient relationship with new patients.

Finally, CMS sets forth that certain RPM services – covered by CPT 99454 - can be billed by only one practitioner.

“CMS comments about RPM being billed by only one practitioner is new, and when read in context of the Final Rule, it remains unclear if CMS means a practitioner cannot bill multiple RPM services for the same patient in the same month, or if it means CMS will pay only one RPM claim per beneficiary per month,” the Foley & Lardner team wrote. “If the former, a patient could enroll in different RPM programs with different specialists during the same time period (e.g., a cardiologist for the patient’s heart needs and an endocrinologist for the patient’s diabetes) and each specialist could bill Medicare for their respective RPM services. If the latter, a patient could enroll in only one practitioner’s RPM program, which is how CCM services are currently structured. CMS’ billing guidance for CCM is expressly clear about this restriction, but the RPM guidance does not use a similarly explicit statement, so there remains definite ambiguity.”

They’re not the only ones disappointed with the RPM provisions.

In her analysis of the 2021 PFS, Carrie Nixon, co-founder and managing partner of the Nixon Gwilt law firm, faulted CMS for failing to extend stand-alone reimbursement for federally qualified health centers (FQHCs) and rural health clinics (RHCs), two locations that have seen a lot of telehealth use during the pandemic.

"CMS contends that reimbursement for these care management services is encompassed in the All-Inclusive Rate for RHCs and the Prospective Payment System for FQHCs, ignoring and contradicting the fact that other care management services like CCM have been deemed eligible for standalone reimbursement," she said.

Nixon also panned the lack of RPM reimbursement for therapists.

"CMS declined to eliminate a barrier to services for patients undergoing physical, occupational, or behavioral health therapy, failing to address comments by numerous stakeholders requesting that such therapists be permitted to order RPM for patients using 'sometimes therapy' codes similar to those created for therapists to bill e-visits and virtual check-ins," she said. "Instead, CMS reiterated that RPM services may only be ordered and billed by physicians, nurse practitioners, or physician assistants."

As well, CMS is allowing data to be gathered by wireless devices from the home but it won't take data submitted by patients. 

"In doing so, it ignored comments by stakeholders pointing out that such an interpretation would eliminate relevant physiologic metrics that are typically self-reported, such as pain and mood, from use in managing a patient’s care," she said. "CMS also failed to consider the lack of access to certain types of devices in “connected” form that became especially apparent during the COVID-19 PHE, when we experienced a global shortage of these devices."

Finally, Nixon questioned the decision by CMS to require at least 16 days of data over a 30-day time period for an RPM program. 

"Numerous stakeholders responded with clinical examples of such conditions that could readily be managed with fewer data transmissions, and even some instances in which requiring 16 separate transmission can be damaging to patients – for example, transmission of a patient’s weight in managing obesity," she wrote. "Despite these specific examples, CMS stated in the Final 2021 MPFS that 'although we received general support for a reduction in the number of days of data collection required to bill for CPT codes 99453 and 99454, we did not receive specific clinical examples…we are not extending the interim policy to permit billing for CPT codes 99453 and 99454 for fewer than 16 days in a 30-day period.' Notably, the Final 2021 MPFS does not appear to prohibit billing CPT codes 99457 and 99458 when 20 minutes of care management services time has accrued during a calendar month, regardless of whether or not 16 days of transmissions have occurred during that time."

The American Telemedicine Association also criticized the RPM guidelines.

“While we appreciate the progress made in this final PFS, we are disappointed that CMS did not heed concerns expressed by the medical community – clearly outlined in the ATA’s comments on the draft rule – about certain provisions related to how remote patient monitoring services are to be covered by the PFS,” ATA CEO Ann Mond Johnson said in a press release. “Moving forward, we urge CMS to reconsider its approach to some aspect of remote patient monitoring coverage based on the realities of clinical practice,”

Telehealth and mHealth Coverage

While the RPM provisions may have disappointed many telehealth advocates, new coverage for telehealth and mHealth services received more praise.

The Foley & Lardner team in a separate blog praised CMS for changes that it says are “bold and designed to more deliberately expand the use of telehealth technologies among Medicare beneficiaries as the country continues to combat the Public Health Emergency (PHE).”

In particular, the group noted that CMS has redefined “direct supervision” via telehealth during the PHE, moving from the requirement that a physician be in the same room and immediately able to furnish assistance and direction to allowing that physician to be immediately available via telemedicine (interactive audio-video, not audio-only).

“The new definition opens opportunities for telehealth and incident-to billing,” the team wrote. “CMS acknowledged there are no Medicare regulations that explicitly prohibit eligible distant site practitioners from billing for telehealth services provided incident-to their services. But because the current definition of direct supervision required on-site presence of the billing clinician when the service was provided, it was difficult for a billing clinician to fulfill direct supervision of services provided via telehealth incident-to their professional services by auxiliary personnel. Under the new definition, CMS clarified that services that can be provided incident-to may be provided via telehealth incident-to a distant-site physician’s service and under the direct supervision of the billing practitioner via virtual presence.”

Another noteworthy inclusion was coverage for audio-only services. Recognizing the value in a phone call, CMS is offering limited reimbursement for that service through the PHE under HCPCS code G2252.

“G2252 is cross-walked to CPT code 99442 for reimbursement purposes, making its reimbursement higher than the current more limited duration virtual check-in code,” the team at Foley & Lardner noted. “The code is intended for situations when the acuity of a patient’s problem is not necessarily likely to warrant an in-person visit, but when additional time is needed to make this assessment. Because it is a CTBS, the traditional Telehealth Service location restrictions do not apply, which in part means G2252 can be used regardless of the patient’s geographic location and regardless of whether the PHE ends prior to the end of CY2021. Thus, while the audio only telehealth codes currently approved subject to Section 1135 PHE waivers may only be used during the PHE, this code would extend beyond the PHE. The communication technology must be synchronous and is subject to the same billing requirements as the other virtual check-in codes.”

“CMS declined to allow audio-only telehealth following the PHE; yet, at the same time, CMS extended audio-only virtual check-ins to 20 minutes and also to ancillary providers through the end of CY 21,” Ryan Bailey, vice president of the healthcare consulting firm Advis, said. “This is somewhat surprising, as these extensions are a recognition that providers cannot immediately revert to the ‘old ways’ for delivering telecommunications services immediately after the PHE; however, CMS will not move to audio-only delivery on a permanent basis, even if components of remote monitoring are incorporated. Still, this is a nice cushion from CMS to allow providers and beneficiaries to allow for a period to right-size expectations for in-person visits following the PHE. 

CMS also permanently expanded telehealth services in skilled nursing facilities by allowing coverage for one visit every 14 days, rather than once every 30 days. No changes were made to telehealth frequency limitations for hospital inpatient visits or critical care consults.

“CMS was persuaded that the use of telehealth is crucial to maintaining continuity of care in nursing facilities, and to honor the independent medical judgment of treating clinicians to decide whether telehealth vs in-person care should be used, depending on the needs of each specific resident,” the Foley & Larder team said.

Finally, CMS added several codes for new coverage on a permanent basis, classified as Category 1 services, and finalized its proposal to create a Category 3, consisting of telehealth services covered only through the calendar year that the PHE ends.

Taking the Next Step

In summarizing the 2021 PFS, Foley & Lardner urged providers to make full use of telehealth services now, to take full advantage of CMS coverage during the PHE, and be mindful of the fact that some coverage will end when the crisis ends.

“CMS got a lot right in this final rule, including making a range of telehealth services permanently available to Medicare beneficiaries,” Johnson, at the ATA, noted in her press release. “Our fingers are crossed that many of the temporary telehealth services added to the Medicare list during the public health emergency will also be made permanent. This final rule is yet another clear indication that telehealth has become a permanent part of our healthcare system and we applaud the administration for its leadership to ensure our citizens have had increased access to vital telehealth services in response to COVID-19.”

Johnson also urged Congress to pick up the slack.

“Congress must act swiftly to ensure millions of Americans do not lose access to telehealth after the pandemic ends and eliminate the arbitrary geographic discrimination of 1834m of the Social Security Act,” she said. “The ATA strongly supports the Protecting Access to Post-COVID-19 Telehealth Act of 2020 (HR 7663) and the Telehealth Modernization Act (S. 4375, HR 8727). Passing these bills would go a long way toward ensuring all Medicare beneficiaries have continued access to telehealth services after the COVID-19 public health emergency.”

In particular, advocates are looking for Congressional action to expand the list of care providers able to use telehealth, make is easier for providers to treat patients in other states and remove geographical restrictions on where telehealth can be used.

“It would be great if CMS found a way to expand telehealth outside of the rural geographic limitations within the Social Security Act for traditional Medicare beneficiaries,” Advis’ Bailey said. “However, CMS declined to take an aggressive interpretation of the SSA.”