Compliance Checkup: CMS Releases the Proposed 2022 Medicare Physician Fee Schedule

 the Centers for Medicare & Medicaid Services (CMS) released the proposed 2022 Medicare Physician Fee Schedule (PFS). Pursuant to the Administrative Procedure Act (APA), CMS is required to post its proposed rules and solicit public comments which in this case are due by 5 pm on September 13, 2021.

The PFS is budget-neutral—meaning the net dollar impact of changes made to reimbursement must be $0. However, this year’s proposed changes incorporate some variables we do not normally account for due to the COVID-19 pandemic and more specifically, the Consolidated Appropriations Act¹ (CAA) published as a result of the pandemic’s effects. For example, because telehealth rules were relaxed last year, CMS continues to consider permanent changes to the telehealth rules allowing expanded patient access to services, particularly behavioral health services, beyond the end of the public health emergency (PHE) which we anticipate ending on December 31, 2021. Additionally, the 3.75 percent payment increase from the CAA will expire thereby reducing the PFS conversion factor down to $33.58 from $34.89.

This blog highlights the major or notable proposed provisions affecting most health care providers. The full federal register can be viewed here.

• CY 2022 PFS Conversion Factor
  • Expiration of the 3.75 percent payment increase provided in the CAA reduces the PFS conversion factor to $33.58; and
  • Changes the practice expense portion of the relative value units (RVU) for many services if you use these elements in any compensation or other internal budget reporting.
• Split (or shared) E/M visits
  • Defines the split (shared) visit as evaluation and management (E&M) visits provided in the facility setting by a physician and an NPP in the same group;
  • Changes proposed include a shift in which provider bills the visit, to the practitioner who provides the more substantive portion of the visit (>50%);
  • Split (or shared) visits could be reported for both new and existing patients and new and established patients; and
  • Requires reporting a modifier on the claim, documentation in the medical record identifying all providers who performed the visit, and a date and signature by the practitioner performing the substantive portion.
• Critical Care Services
  • Allows critical care services to be furnished to the same patient on the same day by more than one practitioner representing more than one specialty, but not with other E&M visits.
• Telehealth Services under the PFS
  • Allows certain services added to the Medicare telehealth list to remain on the list to the end of December 31, 2023 (currently set to expire with the PHE); and
  • Changes to the provision of mental health services including loosened geographic restrictions, allowing patients to be served from their home location, and the use of audio-only communications in some instances (as opposed to requiring two-way audio-visual requirements).
• Therapy Services
  • Reimburses physical therapy and occupational therapy services furnished by physical therapist assistants (PTAs) and occupational therapy assistants (OTAs) at 85% of the fee schedule using two new modifiers (CQ and CO); and
  • Revises the de minimis policy to allow a timed service to be billed without the CQ/CO modifier in cases when a PTA/OTA participates in providing care along with a physical therapist or occupational therapist (PT/OT), and the PT/OT still meets the necessary Medicare billing requirements for the timed service without counting the minutes furnished by the PTA/OTA by providing more than the 15-minute midpoint.
• Physician Assistant (PA) Services
  • Reimburses physician assistants (PAs) directly for their services and permits them to reassign their payments as other non-physician providers (NPPs) (currently, PAs are reimbursed through their employer or supervising physician).
• Vaccine Administration Services Comment Solicitation
  • CMS is seeking comments on the costs involved in furnishing preventive vaccines in light of the recent COVID-19 vaccine and is considering changes to reimbursement for all vaccines based on the feedback.
• Opioid Treatment Program (OTP) Payment Policy
  • Allows opioid treatment providers (OTPs) to furnish counseling and therapy services through audio-only interaction after the conclusion of the COVID-19 PHE in cases where audio/video communication is not available to the beneficiary.
• Electronic Prescribing of Controlled Substances — Section 2003 of the SUPPORT Act (EPCS)
  • Currently, the first phase of the EPCS requires electronic-only prescribing of controlled substances (Schedules II-V) covered by Medicare Part D beginning on January 1, 2022. These proposed rules create new exceptions to the EPCS requirement:
    • When prescribers and dispensing pharmacy are the same entity;
    • For prescribers who issue 100 or fewer controlled substance prescriptions for Part D drugs per calendar year; and
    • or prescribers who are in the geographic area of a natural disaster, or who are granted a waiver based on extraordinary circumstances.
  • Allows prescribers to request a waiver where circumstances beyond the prescriber’s control prevent the prescriber from being able to electronically prescribe controlled substances covered by Part D; and
  • Considers an extended start date for compliance actions to January 1, 2023, (from January 1, 2022).
• Medicare Shared Savings Program 
  • Proposes several changes for Accountable Care Organizations (ACOs), including:
    • Extending the data collection period for reporting electronic clinical quality measures/Merit-based incentive payment system clinical quality measures (eCQMs/MIPS CQM) under the Alternative Payment Model (APM) Performance Pathway (APP) through performance year 2023;
    • Freezing the quality performance standard for payment year 2023;
    • Revising the methodology for calculating repayment mechanism amounts for risk-based ACOs; and
    • ACOs accepting performance-based risk must establish a repayment mechanism (i.e., escrow, line of credit, surety bond) to assure CMS that they can repay losses for which they may be liable upon reconciliation.
  • CMS is seeking feedback on revisions to the beneficiary assignment in ACO’s and adjustments to payments made under the Shared Savings Program as a whole; and
  • For all providers, CMS is proposing a shift from MIPS to MVPs in order to consolidate and simplify the clinical measures that will be tied to value-based payment as well as some major overhaul to the reporting infrastructure. Please review the Quality Payment Program (QPP) Proposal Overview Fact Sheet here for more details surrounding these proposed changes.
• Medicare Provider Enrollment 
  • Exempts certain types of independent diagnostic testing facilities (IDTFs) from several of its IDTF supplier standards in 42 CFR § 410.33;
  • Expands its authority to deny or revoke a provider’s or supplier’s Medicare enrollment; and
  • Establishes specific rebuttal procedures in regulation for providers and suppliers whose Medicare billing privileges have been deactivated.

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