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Summary of CMS Interim Final Rule on Regulatory Flexibilities


On March 30th, the Centers for Medicare and Medicaid Services (CMS) announced a wide range of new temporary waivers and regulatory flexibilities during the coronavirus public health emergency (PHE).

CMS is granting these waivers and flexibilities through an interim final rule under its authority from sections 1135 and 1812(f)of the Social Security Act. The waivers are effective retroactive to March 1st until the President declares an end to the PHE.

Some provisions of the final rule make changes to previously issued CMS wavier policies. Additionally, some of the provisions codify policies previously announced by CMS.

CMS announcement included a link to a list of factsheets and FAQs on its wavier actions. The interim final rule document includes many important details that were not described in the factsheets. Some of the factsheets CMS provided include:

Below is a summary of the Interim Final Rule.

Reminder: Medicare has three telehealth coverage categories 1) Telehealth Visits, 2) Virtual Check-Ins, and 3) E-Visits. Each of the three categories have their own coding and coverage requirements.

Replacing POS 02 with Modifier 95
On March 17th, CMS issued waivers to expand Medicare coverage of telehealth services. Starting on March 6, 2020, Medicare can pay for telehealth services, including office, hospital, and other visits furnished by physicians and other practitioners to patients located anywhere in the country, including in a patient’s place of residence.

When CMS originally issued that waiver, CMS guidance said that claims for Medicare Telehealth Visit services should continue including the telehealth POS code 02. In the interim final rule (IRF), CMS acknowledges that telehealth visit claims with POS code 02 will receive a different (and usually lower) facility fee payment than CMS would have paid had the service been performed face-to-face.

CMS wants providers to receive the higher facility fee during the PHE. CMS is therefore directing providers to no longer use POS 02 for Medicare telehealth claims. CMS is instructing physicians and practitioners who bill for Medicare telehealth services to report the POS code that would have been reported had the service been furnished in person.

To replace POS 02, CMS is finalizing on an interim basis the use of the CPT telehealth modifier, modifier 95, which should be applied to claim lines that describe services furnished via telehealth.

Telehealth Visit Services
CMS also added over 80 services to its list of Telehealth Visit services for the PHE. The list of new codes begins on page 19 of the IRF.

Telehealth Therapy Codes
CMS is adding certain occupational, speech and physical therapy services to the telehealth services list. However, physical therapists, occupational therapists, or speech-language pathologists are not on the approved list of Medicare distant site practitioners for Medicare Telehealth Visits. Those providers will not be paid for Medicare therapy services delivered via telehealth. However, these practitioner types can bill Medicare for other types of telehealth benefits such as E-Visits.

Removing Frequency Limits for Certain Telehealth Codes
CMS is also suspending the once every three days limit on how frequently certain “subsequent services” furnished through telehealth can be billed. The list of those codes begins on page 42 of the proposed rule.

The IRF makes important clarifications about approved telehealth devices. CMS’ current regulations state that telephones, facsimile machines, and electronic mail systems do not meet the definition of an interactive telecommunications systems for purposes of Medicare telehealth services. CMS is clarifying that smartphones do qualify as telehealth devices.

Telehealth Coverage for Certain Telephone E/M Services
CMS is temporarily covering a specific set of telehealth codes for E/M services that are provided via telephone or online. For the duration of the PHE for the COVID-19 pandemic, CMS will cover separate payment for CPT codes 98966-98968 and CPT codes 99441-99443. The full description of these codes can be found on page 122 of the IRF.

Additionally, CMS will allow these codes for both new and established patients.

These codes are similar to Virtual Check-Ins telehealth codes. These codes are for services not originating from a related assessment and management or evaluation and management service provided within the previous 7 days nor leading to an assessment and management or evaluation and management service or procedure within the next 24 hours or soonest available appointment.

Level Selection for Medicare E/M Codes Furnished via Telehealth
Prior to the PHE, telehealth office/outpatient E/M services could be furnished to beneficiaries in their homes only when they are for individuals with a substance use disorder (SUD) diagnosis for purposes of treatment of such disorder or co-occurring mental health disorder. However, CMS issued a waiver that allows telehealth office/outpatient E/M services to be furnished to any patient in their home regardless of their diagnosis or medical condition during the PHE.

For these services, the primary factor in selecting the appropriate level of E/M service to bill would be time spent counseling the patient. On an interim basis, CMS is revising its policy to specify that the office/outpatient E/M level selection for these services when furnished via telehealth can be based on MDM or time, with time defined as all of the time associated with the E/M on the day of the encounter. CMS is also removing all requirements regarding documentation of history and/or physical exam in the medical record

Direct Supervision by Interactive Telecommunications Technology
Medicare allows certain services to be performed by a practitioner under the direct supervision of another practitioner. CMS will allow direct supervision to be provided using real-time interactive audio and video technology for the duration of the PHE.

CMS is revising its definition of direct supervision to state that necessary presence of the physician for direct supervision includes virtual presence through audio/video real-time communications technology when use of such technology is indicated to reduce exposure risks for the beneficiary or health care provider. This definition will apply for the duration of the PHE.

CMS notes that this change is limited to only the manner in which the supervision requirement can be met, and does not change the underlying payment or coverage policies related to the scope of Medicare benefits, including Part B drugs.

National and Local Coverage Decisions
To the extent an NCD or LCD (including articles) would otherwise require a face-to-face or in-person encounter for evaluations, assessments, certifications or other implied face-to-face services, those requirements would not apply during the PHE for the COVID-19 pandemic.

To the extent NCDs and LCDs require a specific practitioner type or physician specialty to furnish a service, procedure or any portion thereof, CMS will allow the chief medical officer or equivalent of the facility to authorize another physician specialty or other practitioner type to meet those requirements during the PHE for the COVID-19 pandemic.

Additionally, to the extent NCDs and LCDs require a physician or physician specialty to supervise other practitioners, professionals or qualified personnel, the chief medical officer of the facility can authorize that such supervision requirements do not apply during the PHE for the COVID-19 pandemic.

Ambulance Destinations List
For the duration of the PHE, CMS is expanding the list of destinations at § 410.40(f) for which Medicare covers ambulance transportation to include all destinations, from any point of origin, that are equipped to treat the condition of the patient consistent with Emergency Medical Services (EMS) protocols established by state and/or local laws where the services will be
furnished. This expanded list of destinations will apply to medically necessary emergency and non-emergency ground ambulance transports of beneficiaries during the PHE for the COVID-19 pandemic.

These destinations may include, but are not limited to: any location that is an alternative site determined to be part of a hospital, CAH or SNF, community mental health centers, FQHCs, RHCs, physicians’ offices, urgent care facilities, ambulatory surgery centers (ASCs), any location furnishing dialysis services outside of an ESRD facility when an ESRD facility is not available, and the beneficiary’s home.

Practice Improvement Activities
CMS is adding one new improvement activity to the Improvement Activities Inventory for the CY 2020 performance period in response to this PHE. This improvement activity promotes clinician participation in a COVID-19 clinical trial utilizing a drug or biological product to treat a patient with a COVID-19 infection. CMS believes that participation in this activity is likely to result in improved outcomes by improving the collection of data clinicians use for the care of their patients as they monitor and manage COVID-19 and drive care improvements.

Extreme and Uncontrollable Circumstances
CMS is automatically applying the MIPS automatic extreme and uncontrollable circumstances policy to MIPS eligible clinicians for the 2019 MIPS performance period/2021 MIPS payment year. CMS believes that this application of the policy is appropriate given the impact COVID-19 will likely have on the ability of many MIPS eligible clinicians to complete data submission for the MIPS program for the 2019 MIPS performance period because most of those submissions will occur during CY 2020.

CMS recognizes that groups and virtual groups are not eligible for the extreme and uncontrollable circumstances policy. However, MIPS eligible clinicians can apply for reweighting of categories based on these circumstances. CMS is extending the reweighting application deadline from December 31, 2019 to April 30, 2020, or a later date that CMS may specify.

Alternative Payment Models
CMS is making changes to some of its Alternative Payment Model (APM) programs to help participants during the PHE. For example, CMS is extending the length of the Comprehensive Care for Joint Replacement (CJR) model by three months. The performance year will now end on March 31, 2021 instead of on December 31, 2020.

CMS will also apply its extreme and uncontrollable circumstances policy to episodes that occur during the PHE. The policy currently applies only during major disaster declarations where a participant hospital and its beneficiaries are affected by natural disasters, such as, hurricanes, earthquakes, wildfires. CMS will apply the policy for episodes that were initiated since the PHE was declared on March 13th. However, CMS does not expect many CJR episodes during the PHE since hospitals have been asked to postpone elective procedures such as joint replacements.

CMS is also applying its extreme and uncontrollable circumstances policy to Accountable Care Organizations (ACO) that participate in the Medicare Shared Savings Program (MSSP) for the duration of the PHE.

Hospitals Without Walls
To increase hospital capacity, CMS will pay healthcare systems and hospitals for inpatient hospital services provided in locations beyond their physical walls. Under CMS’s temporary new rules, hospitals will be able to transfer patients to outside facilities, such as ambulatory surgery centers, inpatient rehabilitation hospitals, hotels, and dormitories, while still receiving hospital payments under Medicare. For example, a healthcare system can use a hotel to take care of patients needing less intensive care while using its inpatient beds for COVID-19 patients. These alternative types of sites could provide services typically provided by hospitals such as cancer procedures, trauma surgeries, and other essential surgeries.

Advanced Payments for Part B Services
The IRF codifies a policy previously announced by CMS that it will allow providers to request three months of advanced payments. Advanced payments are usually intended to provide emergency short-term cash flow for providers who are affected by natural disasters.

Under the program, Medicare providers can receive payment for up to three months of Medicare payments. Providers can still bill for their services and will be paid as normal in addition to the advanced payments.

Providers will repay the advanced payments back 120 days later. At the end of the 120-day period, the automatic recoupment process will begin and every claim submitted by the provider/supplier will be offset from the new claims to repay the accelerated/advanced payment. Instead of receiving payment for newly submitted claims, the provider’s/supplier’s outstanding accelerated/advance payment balance is reduced by the claim payment amount.