CMS Proposed 2023 Medicare Regulations

CMS (Centers for Medicare & Medicaid Services) recently published proposed regulations for calendar year 2023 for hospital outpatient services (HOPPS, pgs. 44679-81) and physicians (PFS, pgs. 45900-91). Our friends at AACVPR have authored an incredibly helpful summary of the proposals. We would like to amplify the information and actions they are taking by sharing the update with you.

AACVPR Health Policy & Reimbursement Update

Proposed 2023 Medicare Regulations

CMS (Centers for Medicare & Medicaid Services) recently published proposed regulations for calendar year 2023 for hospital outpatient services (HOPPS, pgs. 44679-81) and for physicians (PFS, pgs. 45900-91).

The regulations address two aspects of cardiac, intensive cardiac, and pulmonary rehabilitation (CR/ICR/PR):

• Direct supervision by a physician through virtual presence via real-time, two-way audio/visual telecommunications technology
• Reduced payment for outpatient respiratory services

Virtual Direct Supervision of Cardiac, Intensive Cardiac and Pulmonary Rehabilitation Services

CMS Proposes

Both the PFS and HOPPS regulations seek comment on virtual direct supervision. It is most likely that the public health emergency (PHE) will extend into 2023. The definition of the current temporary option during the PHE is the immediate virtual presence of a physician via real-time, two-way audio/visual telecommunications technology. The expiration of this flexibility could vary for CR/ICR/PR in physician offices versus those services in the hospital outpatient setting:

• Physician Office: After December 31 of the year in which the PHE ends, "the pre-PHE rules for direct supervision would apply” (PFS pg. 45901)
• Hospital Outpatient Setting: "Flexibility continues until the later of the end of the calendar year in which the PHE …ends.” (HOPPS pg. 44680)

CMS seeks information on the following:

PFS (pg. 45901)

• Whether the flexibility to meet the immediate availability requirements for direct supervision through the use of real-time, audio/video technology, should potentially be made permanent
• Should this be made permanent for only a subset of services

HOPPS (pg. 44680)

• Specific to CR/ICR/PR, whether to continue two-way, audio/video communication technology through the end of CY 2023
• Are there safety and/or quality of care concerns regarding adopting this policy beyond the PHE
• What policies CMS could adopt to address those concerns if the policy were extended post-PHE

AACVPR Response

In joint comments with our professional partner organizations, the following recommendations for direct supervision via virtual presence have been submitted to both the PFS proposed regulation and the HOPPS regulation:

Recommendation

To meet Medicare statutory requirements, we strongly recommend CMS make permanent direct supervision through virtual presence via real-time, audio-visual telecommunications technology in the final CY 2023 update to the physician fee schedule so Medicare beneficiaries can continue to receive cardiac and pulmonary rehabilitation services that can improve their lives.

CMS should not restrict direct supervision through virtual presence to a subset of services. The decision on whether to provide direct supervision through virtual presence via real-time, two-way audio/virtual telecommunications should be left up to the practitioner overseeing the patient’s care.

Because the option to meet direct supervision through virtual presence has only become available during the public health emergency, there is a lack of peer-reviewed studies that focus on this aspect of virtual care. However, with these recommendations are numerous cited studies that demonstrate virtual and hybrid delivery of CR and PR services provided by staff are safe, improve health outcomes and adherence, and address barriers to access.

Reduced Payment Proposed for Outpatient Respiratory Services

CMS Proposes

CMS proposes to reduce the hospital reimbursement rate for services in APC (Ambulatory Payment Classification) 5731 in CY 2023 by close to 50%. This APC is where G0237-38 are grouped. This appears to be inconsistent with the discussion by CMS in the section on rate setting (HOPPS, pg. 44681) that included a temporary, lower-cost procedure, COVID nasal swap test, in the same APC (5731). This may have skewed the rate setting data for this APC. CMS concluded that, “We do not believe including the claims data for this code in establishing CY 2023 payment rates would be appropriate.” However, it remains in the proposed calculations that determine proposed payment for this APC.

AACVPR Response

AACVPR and partner professional organizations believe this was an unintentional miscalculation because the new lower-cost procedure, COVID nasal swap test, was placed in APC 5731.

AACVPR, AARC, ATS, and CHEST collaborated in addressing this issue at a virtual hearing held by the APC Advisory Panel on August 22, 2022. While the outcome remains unknown, we are hopeful that CMS will follow through on their suggestion that removing the COVID nasal swab test from APC 5731 would be appropriate.

Because these groups worked together with the APC Advisory Panel, AACVPR, AARC, ATS, and CHEST will submit a joint comment on this HOPPS proposed payment rate, pointing out the inconsistency between the stated conclusions by CMS and the proposed reduced payment amount in the payment calculation.

Virtual Delivery of Cardiac, Intensive Cardiac and Pulmonary Rehabilitation Services

In the PFS (pg. 45900) and HOPPS (pg. 44680) regulations, CMS repeats what has previously been stated regarding virtual delivery of services. Virtual delivery of CR/ICR/PR in the hospital outpatient setting expires when the PHE ends. CMS has been able to allow virtual delivery to hospitals through the Hospitals without Walls waivers that are over when the PHE expires.

CMS added CR/ICR/PR CPT codes to a list of temporary telehealth codes through CY 2023 for physician-owned and delivered CR/ICR/PR services. However, CR/ICR/PR in the physician office setting will only be able to provide virtual CR/ICR/PR sessions in a telehealth originating site and not in the home after 151 days past the expiration of the PHE. The Consolidated Appropriations Act of 2022, passed in March, allows the extension of delivery in the home for this extended time frame, but not beyond the 151 days.

It is important to remember that CMS does not include the hospital setting for CR/ICR/PR when referring to telehealth. CR/ICR/PR in the hospital setting does not equate to telehealth by CMS’s definition. Telehealth applies only to services provided by physicians, practitioners (NPPs), and specified services, such as certain behavioral health and counseling services.

Because CMS is restricted by statutory regulations, Congress would need to pass legislation that would expand virtual delivery of health care services beyond the current flexibilities that exist. There are various bills circulating in Congress that would address this, but nothing has passed since the Consolidated Appropriations Act of 2022.

Public Comments

The submitted AACVPR public comments are posted on AACVPR website.

If you, your program, or your institution wants to support AACVPR recommendations regarding virtual direct supervision, public comments may be submitted by anyone here (follow the “submit a comment” instructions). PFS comments are due by September 6th; HOPPS comments are due by Sept. 13th.

Proposed 2023 Hospital Outpatient Payment Rates

The following table outlines reimbursement rates for hospital outpatient CR/ICR/PR/SET services. Payment rates for physician-owned CR/ICR/PR are calculated using a different formula.

In Conclusion

CMS reviews proposed comments and posts feedback to public comments in the final regulations. Typically, final 2023 CMS regulations are published in early November.