Proposed Rule for 2021 Medicare Fee Schedule Includes Changes to Telehealth Billing and Use of Evaluation and Management Codes

By: Seth A. Nadel, Esq.

On August 3, 2020, the Centers for Medicare and Medicaid Services (“CMS”) issued its Proposed Rule for the 2021 Medicare Physician Fee Schedule (“Proposed Fee Schedule”). The Proposed Fee Schedule incorporates several proposals which could affect future physician billing, including changes to rules regarding use of Evaluation and Management (“E&M”) codes, billing for telehealth services, and others.

Telehealth Provisions

CMS has made several proposals related to telehealth services. Notably, at the outset of the COVID-19 pandemic, CMS temporarily added numerous codes to the list of approved telehealth services. In the intervening months, many providers have urged that CMS make these additions permanent. Accordingly, CMS has proposed permanently adding certain services to its permissible telehealth list. Some of these services include group psychotherapy, neurobehavioral status exams, care planning for patients with cognitive impairments and domiciliary, rest home or custodial care services. The list of permanent additions also includes general codes for prolonged services or home visits.

Additionally, CMS has proposed temporarily continuing to reimburse for certain services which have been added to its list on an emergency basis, which will remain in effect through the calendar year in which the public health emergency ends – which presumably includes 2021. These include domiciliary, rest home or custodial care services, home visits, and psychological and neuropsychological testing. CMS is continuing to solicit comments related to services added during the pandemic which do not appear on the list.

The Proposed Fee Schedule also would (a) relax rules regarding the frequency with which providers are permitted to check on nursing home residents via telehealth; (b) clarify supervision requirements for mid-level providers performing “incident-to” services via telehealth, and; (c) amend the definition of “interactive telecommunication systems” to mean any “multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication,” opening the door to the use of smartphones as a permissible means of delivering telehealth services.

E&M Codes

            In the hope that practitioners may be able to spend less time documenting patient visits and more time treating their patients, CMS has proposed overhauling key elements required to be documented when billing for E&M services. Specifically, these changes include eliminating history and physical exams as elements for selecting the appropriate E&M code. Additionally, physicians would be allowed to choose whether the documentation submitted includes the medical decision-making, or is simply a function of total time spent with patients. For example, 99213 would represent 20-29 minutes, and 99214 would represent 30-39 minutes. Such “time” would refer to total time spent, including non-face-to-face work done that day, and does not need to be limited to time spent counseling the patient on their medical issue.

Other Additions and Changes

           MIPS Quality Payment Program – CMS has proposed continuing to allow physicians to opt out of the Merit-Based Payment System (“MIPS”) based on the ongoing realities of the pandemic. Performance thresholds, performance categories, and incentive payment amounts would also be subject to revisions in 2021.

            Decreased Conversion Factor – the Proposed Plan includes a decrease of the Medicare Work Relative Value Unit (wRVU) conversion factor for physician services from $36.09 to $32.26. It includes significant wRVU decreases for radiology services, CRNA’s, and chiropractors to offset program spending in other areas.

            Diagnostic Test Supervision by Mid-Level Providers – Whereas previously midlevel providers were only authorized under Medicare rules to “order” and “furnish” diagnostic tests, CMS has proposed adding the supervision of diagnostic tests to the scope of practice of nurse practitioners, certified nurse midwives, clinical nurse specialists, and physician assistants. This would represent a permanent extension of rules implemented during the pandemic which allowed mid-level providers to perform these supervision activities for the first time.

More information about the Proposed Fee Schedule may be found at CMS’s website here. Assuming no subsequent changes are made, the Proposed Fee Schedule will be finalized and go into effect as of January 1, 2021. If you have any questions, please reach out to Seth A. Nadel, Esq. at snadel@weisszarett.com or 516-627-7000. 

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.