August 5, 2020

The Centers for Medicare and Medicaid Services (CMS) provided a press release on August 4, outlining several proposed rules that will affect the healthcare industry if approved.  The following will act to summarize a few of the key proposals.

Telehealth Ascending

Pursuant to an executive order signed by President Trump on Tuesday (entitled, “Improving Rural and Telehealth Access”), CMS is proposing changes to expand telehealth permanently.  This is in line with the administration’s effort to improve access and convenience of care for Medicare beneficiaries, particularly those living in rural areas.  To support its proposals, the agency provided the following historical background:

• Over the last three years, as part of the Fostering Innovation and Rethinking Rural Health strategic initiatives, CMS has been working to modernize Medicare by unleashing private sector innovations and improve beneficiary access to services furnished via telecommunications technology.
• Starting in 2019, Medicare began paying for virtual check-ins, meaning patients across the country can briefly connect with doctors by phone or video chat to see whether they need to come in for a visit.
• In response to the COVID-19 pandemic, CMS moved swiftly to significantly expand payment for telehealth services and implement other flexibilities so that Medicare beneficiaries living in all areas of the country can get convenient and high-quality care from the comfort of their home while avoiding unnecessary exposure to the virus.
• Before the public health emergency (PHE), only 14,000 beneficiaries received a Medicare telehealth service in a week while over 10.1 million beneficiaries have received a Medicare telehealth service during the public health emergency from mid-March through early-July.

The proposed rule would extend the availability of certain telemedicine services after the PHE ends, giving Medicare beneficiaries more ways to access healthcare, particularly in rural areas.

During the public health emergency, CMS added 135 services, such as emergency department visits, initial inpatient and nursing facility visits, and discharge day management services, that could be paid when delivered by telehealth.  CMS is proposing to permanently allow some of those services to be done by telehealth including home visits for the evaluation and management of a patient (in the case where the law allows telehealth services in the patient’s home), and certain types of visits for patients with cognitive impairments.

CMS is also proposing to temporarily extend payment for other telehealth services, such as emergency department visits, for a specific time period.  This will also give the community time to consider whether these services should be delivered permanently through telehealth outside of the PHE.

Revaluing Care

Last year, the Trump Administration finalized changes to increase payment rates for office/outpatient evaluation and management (E/M) visits beginning in 2021, in part due to a recognition that “certain chronic conditions in the Medicare population is growing.” For example, as of 2018, 68.9% of beneficiaries have 2 or more chronic conditions.

In this 2021 proposed rule, CMS would increase the value of many services that are comparable to or include office/outpatient visits, emergency department visits, end-stage renal disease capitated payment bundles, physical and occupational therapy evaluation services and others.  The proposed adjustments, which implement certain recommendations from the American Medical Association (AMA), would help to ensure that CMS is appropriately recognizing the kind of care where clinicians need to spend more face-to-face time with patients, like primary care and complex or chronic disease management.

Empowering Providers

In an effort to reduce regulatory burden for providers, CMS is proposing to make permanent some of the temporary changes it made during the PHE.  The changes include:

• Nurse practitioners, clinical nurse specialists, physician assistants, and certified nurse-midwives (instead of only physicians) will be allowed to supervise others performing diagnostic tests consistent with state law and licensure, providing that they maintain the required relationships with supervising/collaborating physicians as required by state law.
• Pharmacists can provide services as part of the professional services of a practitioner who bills Medicare.
• Physical and occupational therapy assistants (instead of only physical and occupational therapists) may provide maintenance therapy in outpatient settings.
• Physical or occupational therapists, speech-language pathologists and other clinicians who directly bill Medicare may review and verify (sign and date), rather than re-document, information already entered by other members of the clinical team into a patient’s medical record.

Public comments on the proposed rules are due by October 5, 2020.  To access and review the entirety of the proposed rule, you can go to the following link: https://www.federalregister.gov/documents/2020/08/12/2020-17086/medicare-program-changes-to-hospital-outpatient-prospective-payment-and-ambulatory-surgical-center.