Summary: Proposed CY 2023 Medicare Hospital Outpatient Prospective Payment System and Ambulatory Surgical Center Payment System Proposed Rule (CMS 1772-P)

On July 15, 2022, the Centers for Medicare & Medicaid Services (CMS) released the CY2023 Medicare Hospital Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) Payment System Proposed Rule, which makes policy and payment updates for hospital outpatient and ambulatory surgical centers. The proposed rule aims to advance health equity and improve access to care in rural communities by establishing policies for Rural Emergency Hospitals (REH), and provides for payment for certain behavioral health services furnished via communications technology.

CMS is seeking comment on several measures under consideration for the new Rural Emergency Hospital Quality Reporting (REHQR) Program, as well as on topics of interest for the REHQR Program for future rulemaking, including rural behavioral/mental health, rural maternal health, and rural telehealth services.

This proposed rule will have a 60-day comment period, which will end on September 13, 2022. The final rule will be issued in early November. See here for a press release, general fact sheet, fact sheet on the Rural Emergency Hospitals Proposed Rulemaking, and the proposed rule.

Below is a summary of key telehealth provisions included within the proposed rule. Specific information that CMS is requesting comments on are also included below.

Nonrecurring Policy Changes – Mental Health Services Furnished Remotely by Hospital Staff to Beneficiaries in Their Homes

  1. CY 2023 OPPS Proposal to Pay for Mental Health Services Furnished Remotely by Hospital Staff
    a. Designation of Mental Health Services Furnished to Beneficiaries in Their Homes as Covered OPD Services

During the PHE for COVID-19, many beneficiaries may be receiving mental health services in their homes from a clinical staff member of a hospital or Critical Access Hospital (CAH) using communications technology under the flexibilities that CMS adopted to permit hospitals to furnish these services. After the PHE ends, absent changes to CMS regulations, the beneficiary would need to physically travel to the hospital to continue receiving these outpatient hospital services from hospital clinical staff. Given the changes in payment policy for mental health services via telehealth by physicians and practitioners under the Physician Fee Schedule (PFS) and mental health visits furnished by staff of RHCs and FQHCs, using interactive, real-time telecommunications technology, it is important to maintain consistent payment policies across settings of care so as not to create payment incentives to furnish these services in a specific setting.

  • CMS proposes to designate certain services provided for the purposes of diagnosis, evaluation, or treatment of a mental health disorder performed remotely by clinical staff of a hospital using communications technology to beneficiaries in their homes as hospital outpatient services that are among the “covered hospital outpatient department (OPD) services” designated by the Secretary as described in section 1833(t)(1)(B)(i) of the Act and for which payment is made under the OPPS. To effectuate payment for these services, CMS proposes to create OPPS-specific coding to describe these services. The proposed code descriptors specify that the beneficiary must be in their home and that there is no associated professional service billed under the PFS. CMS notes that, consistent with the conditions of participation for hospitals at 42 CFR 482.11(c), all hospital staff performing these services must be licensed to furnish these services consistent with all applicable State laws regarding scope of practice.
  • CMS also proposes that the hospital clinical staff be physically located in the hospital when furnishing services remotely using communications technology for purposes of satisfying the requirements at 42 CFR 410.27(a)(1)(iii) and § 410.27(a)(1)(iv)(A), which refer to covered therapeutic outpatient hospital services incident to a physician’s or nonphysician practitioner’s service as being “in” a hospital outpatient department.
    • CMS is seeking comment on whether requiring the hospital clinical staff to be located in the hospital when furnishing the mental health service remotely to the beneficiary in their home would be overly burdensome or disruptive to existing models of care delivery developed during the PHE, and whether they should revise the regulatory text in the provisions cited above to remove references to the practitioner being “in” the hospital outpatient department.
  • CMS also proposes to assign HCPCS codes CXX78 and CXX79 to APCs based on the PFS facility payment rates for CPT codes 96159 (Health behavior intervention, individual, face-to-face; each additional 15 minutes (List separately in addition to code for primary service)) and 96158 (Health behavior intervention, individual, face-to-face; initial 30 minutes), respectively.
    • CMS is seeking comment on the designation of mental health services furnished remotely to beneficiaries in their homes as covered OPD services payable under the OPPS, and on these proposed codes, their proposed descriptors, the proposed HCPCS codes and PFS facility rates as proxies for hospital costs, and the proposed APC assignments for the proposed codes. CMS notes this proposal would also allow these services to be billed by CAHs, even though CAHs are not paid under the OPPS.

b. Periodic In-Person Visits

In the CY 2022 PFS final rule, CMS finalized that, after the first mental health telehealth service in the patient’s home, there must be an in-person, non-telehealth service within 12 months of each mental health telehealth service—but also finalized a policy to allow for limited exceptions to the requirement. Specifically, if the patient and practitioner agree that the benefits of an in-person, non-telehealth service within 12 months of the mental health telehealth service are outweighed by risks and burdens associated with an in-person service, and the basis for that decision is documented in the patient’s medical record, the in-person visit requirement will not apply for that 12-month period (86 FR 65059). CMS finalized identical in-person visit requirements for mental health visits furnished through communications technology for RHCs and FQHCs.

  • In the interest of maintaining similar requirements between mental health visits furnished by RHCs and FQHCs via communications technology, mental health telehealth services under the PFS, and mental health services furnished remotely under the OPPS, CMS proposes to require that payment for mental health services furnished remotely to beneficiaries in their homes using telecommunications technology may only be made if the beneficiary receives an in-person service within 6 months prior to the first time the hospital clinical staff provides the mental health services remotely; and that there must be an in-person service without the use of telecommunications technology within 12 months of each mental health service furnished remotely by the hospital clinical staff.
  • CMS also proposes the same exceptions policy as was finalized in the CY 2022 PFS final rule, specifically, that would permit exceptions to the requirement that there be an in-person service without the use of communications technology within 12 months of each remotely furnished mental health service when the hospital clinical staff member and beneficiary agree that the risks and burdens of an in-person service outweigh the benefits of it. Exceptions to the in-person visit requirement should involve a clear justification documented in the beneficiary’s medical record including the clinician’s professional judgement that the patient is clinically stable and/or that an in-person visit has the risk of worsening the person’s condition, creating undue hardship on the person or their family, or would otherwise result in disengaging with care that has been effective in managing the person’s illness.
  • In the interest of continuity across payment systems so as to not create incentives to furnish mental health services in a given setting due to a differential application of additional requirements, and to avoid any burden associated with immediate implementation of the proposed in-person visit requirements, CMS proposes that the in-person visit requirements would not apply until the 152nd day after the PHE for COVID-19 ends.

c. Audio-only Communication Technology

During the PHE, CMS used waiver authority under section 1135(b)(8) of the Act to temporarily waive the requirement, for certain behavioral health and/or counseling services for audio-only E/M visits, that telehealth services must be furnished using an interactive telecommunications system that includes video communications technology, allowing for payment for services furnished using audio-only communications technology. In order to maximize accessibility for mental health services, particularly for beneficiaries in areas with limited access to broadband infrastructure, and in the interest of policy continuity across payment systems so as to not create incentives to furnish mental health services in a given setting due to a differential application of additional requirements, CMS proposes a similar policy for mental health services furnished remotely by hospital clinical staff to beneficiaries in their homes through communications technology.

  • Specifically, CMS proposes that hospital clinical staff must have the capability to furnish two-way, audio/video services but may use audio-only communications technology given an individual patient’s technological limitations, abilities, or preferences.

Other Relevant Telehealth Provisions:

Request for Comment on Additional Measurement Topics and for Suggested Measures for REH Quality Reporting

CMS’ request for information in the CY 2022 OPPS/ASC proposed rule yielded suggested additional topics for quality measures appropriate to the REH setting. CMS requests comment on the below additional topics and requests suggestions for specific measures to assess the patient experience, outcome, and processes related to these topics. In addition, CMS requests comment on other potential topics not listed that would be applicable to an REH quality reporting program.

  • Telehealth. CMS is seeking public comment on potential future quality measures development to address quality of care using telehealth services in rural and rural emergency settings; as well as, on the ways in which REHs could utilize telehealth and telemedicine to bridge both gaps in expertise and distance to render quality care services.
  • Mental Health. CMS is seeking public comment on potential future quality measures for behavioral health services in rural and rural emergency settings, and on the ways in which REHs could utilize telehealth and telemedicine to bridge both gaps in expertise and distance to render quality behavioral health care services.
  • ED Services. CMS is seeking public comment on potential future quality measures for emergency care services in rural and rural emergency settings, and on the ways in which REHs could utilize telehealth and telemedicine to bridge both gaps in expertise and distance to render quality of care.
  • Equity. CMS is seeking public comment on potential future quality measures for health equity in rural and rural emergency settings, and on the ways in which REHs could utilize telehealth and telemedicine to bridge both gaps in expertise and distance to render equitable, quality of care.