On July 13, 2023, CMS issued a proposed rule that identifies and seeks public comments on a broad array of proposed changes to the Medicare Physician Fee Schedule (PFS) and Medicare Part B payments (the Proposed Rule). If finalized, the proposed changes would take effect January 1, 2024. Comments are due by September 11, 2023.
The Proposed Rule includes changes to dozens of areas affecting a wide range of practitioners and providers. Below is a summary of key proposed changes to the PFS under the Proposed Rule.
Rate and Conversion Factor
Although CMS is proposing increases in payment for primary care and other direct patient care, CMS proposes reducing overall payment rates under the PFS by 1.25% in 2024 compared to 2023. The proposed conversion factor for 2024 is $32.75, which is a decrease of 3.34% from the 2023 conversion factor of $33.89.
Caregiver Training Services
CMS proposes paying for services when furnished by a physician or non-physician practitioner, such as a nurse practitioner, clinical nurse specialist, certified nurse-midwife, physician assistant, or clinical psychologist under a therapy plan of care or individualized treatment plan. CMS’s stated goal for this payment is to support care for Medicare beneficiaries by better training caregivers.
Services for Health-Related Social Needs
CMS proposes coding and payment changes that will account for the resources involved in a multidisciplinary team of clinical staff and other auxiliary personnel furnishing services. Specifically, CMS proposes to pay separately for Community Health Integration, Social Determinants of Health (SDOH) Risk Assessment, and Principal Illness Navigation services. Separate payment as reflected in the proposed codes is specifically designed to include services involving community health workers, care navigators, and peer support specialists.
Community Health Integration services address unmet SDOH needs that affect a patient’s diagnosis and treatment. Principal Illness Navigation services assist Medicare beneficiaries diagnosed with high-risk conditions like cancer and substance use disorder by matching them with appropriate clinical resources. The Proposed Rule also clarifies that community health workers, care navigators, peer support specialists and other auxiliary personnel may be employed by Community-Based Organizations (CBOs), so long as the requisite supervision and billing requirements are met.
CMS also proposes coding and payment for SDOH risk assessments to account for time and resources practitioners spend in these assessments that may impact patient care. The Proposed Rule proposes making the SDOH assessment optional in a patient’s annual wellness visit. The Proposed Rule also includes codes and payment for SDOH risk assessments performed on the same day as an evaluation and management visit.
Evaluation and Management (E/M) Visits
Starting January 1, 2024, CMS proposes a separate add-on payment for healthcare common procedure coding system (HCPCS) code G2211. The add-on code is designed to capture resource costs associated with evaluation and management visits for primary care and longitudinal care of complex patients. The add-on code will generally be available for outpatient office visits. CMS estimates that, if the add-on code is finalized, it will have redistributive effects for all other 2024 payments. CMS originally finalized this policy in 2021, but Congress suspended its use and prohibited CMS from implementing it before 2024. Hence, CMS is proposing to implement the policy this year, but with refinements that would reduce the redistributive impact compared to the original proposal from 2021.
Split (or Shared) E/M Visits
CMS is proposing to delay the implementation of changes to how split/shared E/M visits are billed. CMS intends to modify the definition of “substantive portion” to mean more than half of the total time of the visit, but those changes may now be delayed until at least January 1, 2025. CMS plans to maintain current split (or shared) billing rules, which means the billing provider needs to perform one of the three key components (history, exam, or medical decision-making) or spend more than half of the total time performing the split (or shared) visit.
Telehealth Services Under the PFS
CMS proposes adding health and well-being coaching services to the Medicare Telehealth Services List temporarily for 2024 and permanently for Social Determinants of Health Risk Assessments. The Proposed Rule also seeks to implement telehealth-related provisions of the Consolidated Appropriations Act of 2023 (CAA). These changes include allowing telehealth originating sites to include any place where the patient is located, including their home; expanding the definition of telehealth practitioners to include qualified occupational therapists, qualified physical therapists, qualified speech-language pathologists, and qualified audiologists; continuing payment for telehealth services provided by Rural Health Clinics and Federally Qualified Health Centers; delaying the requirement for an in-person visit with a practitioner within six months of initiating mental health telehealth services; and the continuing coverage and payment for telehealth services included on the Medicare Telehealth Services List (as of March 15, 2020) until December 31, 2024.
CMS also proposes paying for telehealth services at the non-facility PFS rate for services provided to people in their homes. CMS’s goal is to protect access to mental health and other telehealth services first made available on an extended basis during the COVID-19 public health emergency (PHE).
CMS proposes to continue defining direct supervision to allow the supervising practitioner to be present through real-time audio and video interactive telecommunications through December 31, 2024. CMS seeks comment on whether it should consider extending its definition of direct supervision to allow virtual presence after December 31, 2024.
Telehealth Services Furnished in Teaching Settings
CMS proposes allowing teaching physicians to use audio/video real-time communications technology when providing Medicare telehealth services in all residency training locations
through the end of 2024. This is a change from the 2021 PFS final rule, which only allowed for virtual training in some locations, mostly when outside of a metropolitan statistical area. CMS seeks comment on clinical treatment situations where it should allow teaching physicians to train residents virtually, and CMS could consider finalizing these in 2024.
Payment for Outpatient Therapy Services, Diabetes Self-Management Training (DSMT), and Medical Nutrition Therapy (MNT) When Furnished by Institutional Staff to Beneficiaries in Their Homes Through Communication Technology
CMS is proposing to continue to allow institutional providers to bill for DSMT, outpatient therapy, and MNT services until the end of 2024. CMS seeks comments about the effectiveness of DSMT, outpatient therapy, and MNT services when provided remotely as opposed to in person.
Behavioral Health Services
The Proposed Rule implements Medicare Part B coverage and payment under the PFS for marriage and family therapists (MFTs) and mental health counselors (MHCs) who bill for services. CMS also proposes to allow addiction counselors who meet the applicable requirements for MHCs to enroll in Medicare as MHCs. Also, consistent with the CAA, the Proposed Rule would allow MFTs and MHCs to enroll in Medicare after the 2024 PFS is published, allowing them to bill for Medicare services as of January 1, 2024.
CMS also plans to implement a provision of the CAA that requires new HCPCS codes for psychotherapy crisis services provided in an applicable site of service after January 1, 2024. Section 4123 of the CAA states that payment for these psychotherapy crisis services must be 150% of the PFS amount for non-facility sites of service for each year the service is identified by HCPCS codes 90839 and 90840, as well as any succeeding codes.
CMS also proposes allowing Health Behavior Assessment and Intervention Services to be billed by MFTs, MHCs, and clinical social workers. In addition, CMS proposes to increase the valuation for timed behavioral health services under the PFS. The proposal, which would occur over four years, would address distortions in valuing time-based behavioral health services.
Because the CAA requires the hospice interdisciplinary group to include at least one social worker, MFT, or MHC, CMS proposes modifying the hospice Conditions of Participation to allow these caretakes to serve as part of the hospice interdisciplinary group. CMS seeks comment on ways to expand access to behavioral health services, digital therapies, and digital cognitive behavioral therapy.
Opioid Treatment Programs (OTPs)
The Proposed Rule would allow for periodic assessments that occur via audio-only telecommunications to continue through the end of 2024. The flexibilities to conduct audio-only assessments are available when video is not available to the beneficiary and all other requirements, including SAMHSA and DEA requirements, are met.
Supervision Policy for Physical and Occupational Therapists in Private Practice
Since 2005, CMS has required direction supervision of PTs and OTs. The proposed rule would allow for general supervision of therapy assistants for remote therapeutic monitoring
services. CMS seeks comments on whether it should revise its direct supervision regulatory policy to allow for general supervision of all services provided by PTs and OTs, rather than simply remote therapeutic monitoring services. CMS is interested in the effect of such a policy on patient care, patient safety, and changes in utilization, as well as any supporting data on these points.
Diabetes Self-Management Training (DSMT) Services Furnished by Registered Dietitians (RDs) and Nutrition Professionals
CMS proposes clarifying that an RD or nutrition professional must personally perform medical nutrition therapy services. The Proposed Rule would further clarify that the enrolled RD or nutrition professional may bill when acting on behalf of the entire DSMT entity, irrespective of which professional personally delivered each aspect of the services.
Telehealth Proposals for DSMT Services
CMS proposes eliminating the regulatory prohibition on providing Diabetes Self-Management Training entirely via telehealth.
Dental and Oral Health Services
CMS proposes to codify its previously finalized payment policy for dental services provided before or during treatment for head and neck cancer (both primary and metastatic). CMS also proposes allowing payment for certain dental services that are inextricably linked to other covered services used to treat cancer. CMS seeks comment on any evidence that shows circumstances in which dental services are integral to clinical success of covered medical services.
Skin Substitutes
CMS seeks comments on the best manner to incorporate skin substitutes as a supply within the PFS rate setting methodology.
Provisions from the Inflation Reduction Act Relating to Drugs and Biologicals Payable Under Medicare Part B
The Proposed Rule addresses the following provisions that affect payment limits or beneficiary out-of-pocket costs for drugs payable under Part B. CMS proposes to codify in regulation Section 11402, which amends the payment limit for new biosimilars furnished on or after January 1, 2024. CMS also proposes codifying Section 11407, which eliminates a patient’s deductible and limits a patient’s coinsurance to $35 for insulin furnished through an item of DME on or after July 1, 2023.
Drugs and Biologicals Which are Not Usually Self-Administered by the Patient, and Complex Drug Administration Coding
CMS seeks comment on its policies regarding the exclusion of coverage for certain drugs not covered by Part B when self-administered by the patient. CMS also seeks comment on coding and payment policies for complex non-chemotherapeutic drugs.
Clinical Laboratory Fee Schedule: Revised Data Reporting Period and Phase-In of Payment Reductions
CMS proposes making conforming changes to the data reporting and payment requirements for clinical diagnostic laboratory tests (CDLTs). Specifically, for the data reporting period of
January 1, 2024 through March 31, 2024, the data collection period is January 1, 2019 through June 30, 2019.
Ambulance Fee Schedule: Ambulance Extenders Provisions
CMS proposes to revise its regulations to align with existing law, enacted in the CAA, that extends three add-on payments to the ambulance base and mileage rates under the Ambulance Fee Schedule through December 31, 2024.
Medicare Ground Ambulance Data Collection System (GADCS)
The Bipartisan Budget Act (BBA) of 2018 required CMS to implement regulations for a ground ambulance data collection system by December 31, 2019. The GADCS portal went live on January 1, 2023, and CMS has identified opportunities to improve it with the assistance of stakeholders. CMS proposes the following changes to the GADCS instrument: enabling partial year responses from ground ambulance organizations, improving reporting consistency of hospital-based ambulance organizations through minor edits, and correcting four technical typos.
Medicare Part B Payment for Preventive Vaccine Administration Services
CMS is proposing to continue payment for COVID-19 vaccination administration in the home, which was established on a preliminary basis during the PHE. CMS also proposes extending this payment to three preventive vaccines in under Part B (pneumococcal, influenza, and hepatitis B) when provided at home. The payment amount would be updated annually, to reflect a percentage increase in the Medicare Economic Index and geographic cost variations. Under this proposal, the payment amount for all three vaccines would be identical effective January 1, 2024. The proposal would limit payment to one payment per visit, even when multiple vaccines are administered.
Appropriate Use Criteria (AUC) for Advanced Diagnostic Imaging Program
CMS proposes a pause on its efforts to implement the AUC program. The proposal would rescind the current AUC program regulations at 42 C.F.R. 414.94. CMS will reevaluate the program and continue its efforts to identify a workable solution, to be proposed in a future rulemaking.
Other topics addressed in the Proposed Rule
- CMS is soliciting comments on Histopathology, Cytology, and Clinical cytogenetics under the Clinical Laboratory Improvement Amendments of 1988;
- CMS is proposing to extend the PHE flexibility for the Medicare Diabetes Prevention Plan to allow virtual services through December 31, 2027 and also allow fee-for-service payments for attendance; and
- CMS is proposing regulatory revisions for Medicare and Medicaid Provider and Supplier Enrollment.
A copy of the Proposed Rule is available here. The Proposed Rule is expected to be published in the Federal Register on August 7, 2023.
