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The Centers for Medicare and Medicaid Services just issued a proposed rule introducing monumental changes to the physician fee schedule, paving the way for asynchronous telemedicine and new technologies through a new set of virtual care codes.  CMS explained the impetus for the bold changes, declaring:

“We now recognize that advances in communication technology have changed patients’ and practitioners’ expectations regarding the quantity and quality of information that can be conveyed via communication technology. From the ubiquity of synchronous, audio/video applications to the increased use of patient-facing health portals, a broader range of services can be furnished by health care professionals via communication technology as compared to 20 years ago.”

This article discusses the new codes, explains insights on what they will (and will not) accomplish, and describes how the public can submit comments to CMS during the next sixty days.  CMS will consider all comments submitted before issuing a final rule in approximately the first week of November.

CMS also proposed new codes for remote patient monitoring (retitled “Chronic Care Remote Physiologic Monitoring”) and two new telehealth codes for prolonged preventive services in the office or other outpatient setting.  These codes will be addressed in more detail in a subsequent article.

What are the New Virtual Care Codes?

CMS proposed three new HCPCS codes for services to be covered under specific conditions:

  • Virtual Check-Ins, officially titled “Brief Communication Technology-Based Service
  • Asynchronous Images and Video, officially titled “Remote Evaluation of Pre-Recorded Patient Information”
  • Peer-to-Peer Internet Consults, officially titled “Interprofessional Internet Consultation.”

CMS’ proposal to cover asynchronous telemedicine and non-face-to-face services is a major recognition of the validity of asynchronous telemedicine (i.e., store & forward medical care without the use of interactive audio-video or a face-to-face exam).  Asynchronous telemedicine is efficient and patient-centered, and aligns with how many service providers deliver non-healthcare and online services today. CMS’ coverage of these services sends a strong message, both to medical boards and commercial health plans, that asynchronous telemedicine is an important and clinically-valid tool through which providers can deliver healthcare services.

How do the New Virtual Care Codes Differ from Traditional “Medicare Telehealth Services”?

“Medicare telehealth services” refers to a specific set of services that must “ordinarily be furnished in-person, [but are] instead furnished using interactive, real-time telecommunication technology.”  The statutory restrictions in the Social Security Act (the Act) place limits on which services CMS may cover as “Medicare telehealth services,” and which beneficiaries are eligible to receive them.  Moreover, the statute does not give CMS authority to change the limitations relating to geography, patient setting, or type of furnishing practitioner for telehealth services.  This is the primary reason many providers find Medicare telehealth services confusing, leading to OIG’s recent report on telehealth billing errors, despite HRSA maintaining the incredibly-helpful Medicare Telehealth Eligibility Analyzer.  (HRSA’s website tracks the rural and healthcare professional shortage areas for Medicare telehealth coverage.)

Indeed, CMS speculated that the statutory restrictions themselves served to limit “the degree to which the medical community developed coding for new kinds of services that inherently utilize communication technology.”  In other words, an unintended consequence of limiting Medicare telehealth coverage only to patients in rural originating sites using interactive-audio-video may have inhibited the development and use of virtual care services in other settings and other modalities, even outside the Medicare program.  With the changes in this new proposed rule, CMS aims to fix that, setting aside the shadow first cast by that policy 17 years ago.

CMS explained that Section 1834(m) of the Act “applies to a discrete set of physicians’ services that ordinarily involve, and are defined, coded, and paid for as if they were furnished during an in-person encounter between a patient and a health care professional.” (emph. added).[1]  Because the new virtual care codes are communication technology-based services using asynchronous/non-face-to-face modalities, CMS does not consider them to be “inherently face-to-face services” and would not be “defined, coded, and paid for as if they were furnished during an in-person encounter.”  Consequently, CMS does not consider them to fall within the bucket of Medicare telehealth services. Instead, CMS proposes to separately reimburse such services using new codes under the Physician Fee Schedule.

Virtual Check-Ins (HCPCS code GVCI1)

CMS proposed adding a new payment code to the physician fee schedule for “Brief Communication Technology-Based Service[s],” essentially meaning virtual check-in appointments. If adopted, providers could bill using HCPCS code GVCI1 for a “brief non-face-to-face check-in with a patient via communication technology, to assess whether the patient’s condition necessitates an office visit.”

Currently, CMS does not separately cover this type of service, and has no mechanism for reimbursing a provider for a virtual-check. CMS recognizes how “the better practitioners are leveraging technology to furnish effective check-ins that mitigate the need for potentially unnecessary office visits” but that CMS’ current payment policy of not reimbursing for virtual visits “creates incentives that are inconsistent with current trends in medical practice and potentially undermines payment accuracy.”

CMS also noted how virtual check-in services “could be used as part of a treatment regimen for opioid use disorders and other substance use disorders, since there are several components of Medication Assisted Therapy (MAT) that could be done virtually, or to assess whether the patient’s condition requires an office visit.” Through separate payment for virtual check-in appointments, CMS attempts to foster substance use disorder treatment in connection with the opioid crisis. (CMS also seeks to address the opioid crisis through its EHR Incentive Programs proposed rule published May 7, 2018.)

Our Insight on the Proposed Virtual Check-In Code and CMS’ Request for Comments

  • Established Patients Only: Under the proposal, virtual check in services could only be furnished for established patients because CMS believes “that the practitioner needs to have an existing relationship with the patient, and therefore, basic knowledge of the patient’s medical condition and needs, in order to perform this service.”

At first blush, this restriction may appear to unduly limit the applicability of this code, as a physician can create a valid doctor-patient relationship via telemedicine in all 50 states.  Keep in mind, however, this code is only for quick “check-ins” and, by its own definition, is to be used primarily to determine if the patient should schedule a more comprehensive evaluation and management service (E/M).  Virtual check-ins would not be a substitute for a more thorough patient evaluation (via telemedicine or otherwise), and the proposed reimbursement rate reflects that.  CMS proposed pricing the code “at a rate lower than existing E/M in-person visits to reflect the low work time and intensity and to account for the resource costs and efficiencies associated with the use of communication technology.”

Due to the code’s definition and low reimbursement rate, some practitioners may not even want this code to be used for more robust and time-intensive initial patient evaluations.  Moreover, there is no language in the code mandating that the requisite doctor-patient relationship be created via an in-person exam, rather than via telemedicine.  That said, commenters should consider whether or not they agree with this limitation or if they want to suggest that CMS remove the restriction and allow providers to use this code for new patients.  Asynchronous telemedicine providers, in particular, might want the flexibility to have this count as a covered service even for new patients, as more and more states allow the creation of a doctor-patient relationship via asynchronous telemedicine.

  • Frequency Limitations: To its credit, CMS did not propose to impose a frequency limit on the use of virtual check-ins by the same practitioner with the same patient.  However, CMS wants to ensure this code is appropriately utilized for circumstances when a patient needs a brief non-face-to-face check-in to assess whether an office visit is necessary.  CMS is soliciting comments on “whether it would be clinically appropriate to apply a frequency limitation on the use of this code by the same practitioner with the same patient, and on what would be a reasonable frequency limitation.”  For example, CMS currently limits coverage of telehealth E/M delivered to hospital inpatients (one every three days) as well as skilled nursing facility residents (one every thirty days).  Arbitrary frequency limits on coverage of services delivered via telemedicine can create frustration and confusion among the practitioners using these technologies, particularly with regard to when (and if) the practitioner can bill the patient out-of-pocket for the service.  Providers interested in ensuring CMS does not impose any frequency limit on virtual check-ins should strongly consider submitting comments now to CMS, if only to express their support of no frequency limits.  Practice tip: even if there is no express frequency limit on this new code, it would still be subject to Medicare’s reasonable and medically necessary restrictions and must be medically appropriate, so protections against overutilization will still exist even without a frequency limit.
  • Timeframe Limitations: Under the proposed virtual check-in code, CMS would reimburse providers for “5-10 minutes of medical discussion” so long as an E/M was not provided within the previous seven days. Additionally, in order for the code to apply, the virtual check-in appointment must not lead to an E/M or procedure within 24 hours of the appointment or soonest available appointment.  This is similar to how CMS views coverage of telephone consults, and the AMA has historically advocated for separate coverage and reimbursement for telephone consults.

Despite its proposal to impose these timeframes, CMS expressed concern that “establishing strict timeframes may create unintended consequences regarding scheduling of care.”  Consequently, CMS seeks comments on: 1) timeframes under which this service would be separately billable compared to when it would be bundled; and 2) whether CMS should consider broadening the window of time and/or circumstances in which this service should be bundled into the subsequent related visit.”  This is a real concern, and it could cause significant confusion for providers to determine whether or not any given virtual check-in is reimbursable, particularly if CMS includes the vague “or soonest available appointment” language at the end.  Many practitioners might agree that no timeframes should be imposed for this service.  But if CMS insists on imposing some sort of timeframe, it should impose a strict cut-off that practitioners can track and calculate (i.e., no sooner than 24 hours before an E/M or 7 days after an E/M).  In any event, CMS should remove the “or soonest available appointment” language to minimize the confusion that will very likely occur among providers.  For example, how would CMS or its Medicare Administrative Contractors fairly and objectively determine, with any certainty, when is a practitioner’s “soonest available appointment,” particularly in a post-payment claims review?

  • Additional Areas for Comment: CMS also seeks feedback on several other aspects of this virtual check-in code, including:
    • What types of communication technology are utilized by physicians or other qualified health care professionals in furnishing these services, including whether audio-only telephone interactions are sufficient compared to interactions that are enhanced with video or other kinds of data transmission.
    • Whether CMS should require a patient’s express verbal consent that would be noted in the medical record for each service.
    • How clinicians could best document the medical necessity of this service, consistent with documentation requirements necessary to demonstrate the medical necessity of any service under the physician fee schedule.
    • Proposed definition and valuation of this code.

Evaluation of Asynchronous Images and Video (HCPCS GRAS1)

CMS proposed a second new code, HCPCS GRAS1, for “Remote Evaluation of Pre-Recorded Patient Information,” which would reimburse for a provider’s asynchronous review of “recorded video and/or images captured by a patient in order to evaluate the patient’s condition” and determine whether or not an office visit is necessary.  This type of review is also referred to as “store-and-forward” communication technology.

This code would be a stand-alone service that could be separately billed to the extent that there is no resulting E/M office visit and no related E/M office visit within the previous 7 days of the remote service being furnished.  CMS currently pays for asynchronous telehealth only in limited demonstration programs, but this proposed code would apply to all participating providers.

Our Insight on the Proposed Asynchronous Evaluation Code and CMS’ Request for Comments

  • Established Patients Only: Like the virtual check-in code, CMS wants to hear comments on whether it should limit the code to only established patients.  Unlike virtual check-ins, there is clear appreciation for the potential use of asynchronous evaluations with new patients.  In fact, CMS has requested feedback on “whether there are certain cases, like dermatological or ophthalmological services, where it might be appropriate for a new patient to receive these services.” Commenters should consider whether use of this service is appropriate for a certain population of new patients.
  • Bundled Payment, Maybe: Under the code, when the review of a patient-submitted image and/or video results in an in-person E/M office visit with the same physician or qualified health care professional, CMS proposed the remote service be considered bundled into that office visit and therefore would not be separately billable.  This limitation can disadvantage primary care providers and trigger an undesirable incentive for a physician to refer patients to a different physician to perform the asynchronous evaluation simply in order to ensure separate reimbursement.  Telemedicine providers who believe the same physician should be able to deliver (and get paid for) services using both in-person visits and asynchronous telemedicine should consider submitting comments to change this limitation.
  • Reimbursement Rate: CMS wants to ensure the reimbursement rate (valuation) of the asynchronous video/image review code accurately reflects the resource costs associated with furnishing the service.  Providers can submit feedback to CMS on this issue, as it will directly affect the reimbursement rate CMS establishes for this new code.

Peer-to-Peer Internet Consultations (CPT codes 994X6, 994X0, 99446, 99447, 99448, 94449)

The third category of new virtual care codes is reimbursement for “Interprofessional Internet Consultation,” meaning payment for peer-to-peer internet consultations. Under the new CPT codes 994X6, 994X0, 99446, 99447, 99448, 94449, CMS will pay for:

“Assessment and management services conducted through telephone, internet, or electronic health record consultations furnished when a patient’s treating physician or other qualified healthcare professional requests the opinion and/or treatment advice of a consulting physician or qualified healthcare professional with specific specialty expertise to assist with the diagnosis and/or management of the patient’s problem without the need for the patient’s face-to-face contact with the consulting physician or qualified healthcare professional.”

These new peer-to-peer consultation codes are part of a general shift towards comprehensive patient-centered care management that may be especially useful for managing patient chronic conditions, including heart disease, diabetes, respiratory disease, breast cancer, allergies, Alzheimer’s Disease, and factors associated with obesity.  Because of CMS’ current reimbursement approaches, “specialist input is often sought through scheduling a separate visit for the patient when a phone or internet-based interaction between the treating practitioner and the consulting practitioner would have been sufficient.”  In creating these new, separately-payable codes, CMS hopes to encourages efficient and effective resource utilization by minimizing unnecessary visits. Further, making separate payment “for interprofessional consultation undertaken for the benefit of treating a patient will contribute to payment accuracy for primary care and care management services.”

Our Insight on the Proposed Interprofessional Internet Consultation Codes and CMS’ Request for Comments

  • Patient Consent: Because the service would be furnished without the beneficiary being present, CMS proposed the treating practitioner obtain and document the patient’s informed consent in the medical record (similar to the patient consent required for chronic care management services).  Commenters should consider sharing their thoughts on whether or not requiring patient consent is administratively burdensome or critical to the ethical provision of such consultation
  • Utilization Management: CMS wants public feedback on “how to best minimize potential program integrity issues,” particularly if these types of services are separately reimbursed by private payers and what controls or limitations private payers have put in place to ensure these services are billed appropriately.

How to Submit Comments on the Proposed Rule

CMS is soliciting comments on the proposed rule until 5 p.m. September 10, 2018.  Anyone may submit comments – anonymously or otherwise – via electronic submission at this link, or via regular or express overnight mail to Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1693-P, P.O. Box 8016, Baltimore, MD 21244-8016 (for regular mail); or Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1693-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850 (for express overnight mail).  If submitting via mail, please be sure to allow time for comments to be received before the closing date.

Conclusion

The CMS proposed rule includes landmark changes that would allow providers to much more meaningfully use new technologies when delivering medical care.  By including payment codes for virtual check-ins, asynchronous image and video review, and peer-to-peer consultations, the proposed rule exemplifies CMS’ renewed vision and desire to bring the Medicare program into the future of clinically-valid telemedicine services.

For more information on telemedicine, telehealth, virtual care, and other health innovations, including the team, publications, and other materials, visit Foley’s Telemedicine and Digital Health Industry Team and read our 2017 Telemedicine and Digital Health Executive Survey.

[1] P. 65-66.