Proposed Rule: Medicare Program: CY 2021 Revisions to Payment Policies under the Physician Fee Schedule and Other Changes to Part B Payment Policies; Medicare Shared Savings Program Requirements; etc.
On August, 3 2020, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule that announces and solicits public comments on proposed policy changes for Medicare payments under the Physician Fee Schedule (PFS), and other Medicare Part B issues, on or after January 1, 2021. In addition to proposing several changes significant to Medicare Part B therapy, CMS is seeking comment on several policies that could impact nursing homes long-term. For example:
Furnishing Telehealth Visits in Inpatient and Nursing Facility Settings, and Critical Care Consultations
The long term care facility regulations at § 483.30(c) require that residents of SNFs receive an initial visit from a physician, and periodic personal visits subsequently by either a physician or other nonphysician practitioner (NPP). In the CY 2010 PFS final rule with comment period (74 FR 61762) we stated that these regulations ensure that at least a minimal degree of personal contact between a physician or a qualified NPP and a resident is maintained, both at the point of admission to the facility and periodically during the course of the resident’s stay. In that rule we stated that we believe that these federally-mandated visits should be conducted inperson, and not as Medicare telehealth services. We therefore revised § 410.78 to restrict physicians and practitioners from using telehealth to furnish the physician visits required under § 483.30(c).
During the PHE for the COVID-19 pandemic, we waived the requirement in 42 CFR 483.30 for physicians and nonphysician practitioners to personally perform required visits for nursing home residents, and allowed visits to be conducted via telehealth (https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf).
We are seeking public comment on whether it would be appropriate to maintain this flexibility on a permanent basis outside of the PHE for the COVID-19 pandemic. We invite public comment on whether the in-person visit requirement is necessary, or whether two-way, audio/video telecommunications technology would be sufficient in instances when, due to continued exposure risk, workforce capacity, or other factors, the clinician determines an inperson visit is not necessary.
We have also received requests to revise our frequency limitations for telehealth subsequent inpatient and nursing facility visits. Currently, we limit the provision of subsequent inpatient visits via Medicare telehealth to once every 3 days and subsequent nursing facility visits to once every 30 days. We received a request to remove the frequency limitation on the subsequent inpatient services and a separate request to revise the subsequent nursing facility visits to once every 3 days, rather than 30 days.
As we stated in the CY 2019 PFS final rule, we believed the potential acuity of illness of hospital inpatients is greater than that of patients who are likely to receive services that were on the Medicare telehealth services list at that time. We also stated that it would be appropriate to permit some subsequent hospital care services to be furnished through telehealth to ensure that hospitalized patients have frequent encounters with their admitting practitioner. In addition, we expressed our belief that the majority of these visits should be furnished in person to facilitate the comprehensive, coordinated, and personal care that medically volatile, acutely ill patients require on an ongoing basis. Because of our concerns regarding the potential acuity of illness of hospital inpatients, we finalized the addition of CPT codes 99231-99233 to the Medicare telehealth services list, but limited the provision of these subsequent hospital care services through telehealth to once every 3 days. We continue to believe that admitting practitioners should continue to make appropriate in-person visits to all patients who need such care during their hospitalization. Our concerns with, and position on, the provision of subsequent hospital care services via telehealth have not changed (83 FR 59493). Therefore, we are not proposing to modify our current policy.
In the CY 2018 PFS final rule, we reiterated that we believed it would be appropriate to permit some subsequent nursing facility (NF) care services to be furnished through telehealth to ensure that complex nursing facility patients have frequent encounters with their admitting practitioner, but because of our concerns regarding the potential acuity and complexity of NF inpatients, we limited the provision of subsequent NF care services furnished through telehealth to once every 30 days. We also stated that we continued to have concerns regarding more routine use of telehealth given the potential acuity and complexity of NF inpatients, and therefore, we were not proposing to remove the frequency limitation for subsequent NF care services (83 FR 59494). We have received comments from stakeholders who stated that the once every 30-day frequency limitation for subsequent NF visits furnished via Medicare telehealth limits access to care for Medicare beneficiaries in the NF setting. Stakeholders stated that the use of Medicare telehealth is crucial to maintaining a continuum of care in this setting and that CMS should leave it up to clinicians to decide how frequently a visit may be furnished as a Medicare telehealth service rather than in person depending on the needs of specific patients. We are persuaded by the comments from these stakeholders, and therefore, are proposing to revise the frequency limitation from one visit every 30 days to one visit every 3 days. We believe this interval strikes the right balance between requiring in-person visits and allowing flexibility to furnish services via telehealth when clinically appropriate to do so. We are also seeking comment on whether frequency limitations broadly are burdensome and limit access to necessary care when services are available only through telehealth, and how best to ensure that patients are receiving necessary in-person care.
Additional information from the CMS fact sheet:
Therapy Assistants Furnishing Maintenance Therapy
In this CY 2021 PFS proposed rule, we are proposing to make permanent our Part B policy for maintenance therapy services that we adopted on an interim basis for the PHE in the May 1st COVID-19 IFC that grants a physical therapist (PT) and occupational therapist (OT) the discretion to delegate the performance of maintenance therapy services, as clinically appropriate, to a therapy assistant – a physical therapist assistant (PTA) or an occupational therapy assistant (OTA). We are making this proposal because we no longer believe all such maintenance therapy services require the PT or OT to personally perform them and to better align our Part B policy with that paid under Part A in skilled nursing facilities and the home health benefit where maintenance therapy services may be performed by a PT/OT or a PTA/OTA. Our proposed policy would allow PTs/OTs to use the same discretion to delegate maintenance therapy services to PTAs/OTAs that they utilize for rehabilitative services. We are also proposing to revise our subregulatory provisions to clarify that PTs and OTs no longer need to personally perform maintenance therapy services and to remove the prohibitions on PTAs and OTAs from furnishing such services. Should the PHE end before January 1, 2021, the PT or OT would need to personally furnish the maintenance therapy services until the proposed policy change takes effect.