CMS 2023 PFS Proposed Rule and Summary of the AMA Revisions for E/M Guidelines

On July 7th, 2022 the Centers for Medicaid and Medicare (CMS) issued the Physician Fee Schedule (PFS) Proposed Rule for 2023. The draft outlines multiple policy changes and 60-day solicitation timeline for public comment.  This timeline is crucial for physicians, hospitals, and other stakeholders to provide feedback, case scenarios, and financial impact on draft rules, as this can influence the opinion of the CMS policy makers. We strongly encourage providers and stakeholders to draft responses to issues that impact coding policy and/or reimbursement in the clinic or hospital setting. All the comments are reviewed by CMS and considered. We often see unfavorable policies go into effect due to the lack of comments and feedback. You may submit electronic comments at https://www.regulations.gov/document/CMS-2022-0113-0001 by following the “Submit a comment” instructions once the link is live. The proposed rule will be published in the Federal Register on 7/29/2022, and comments will be accepted for 60-days following this date. If you need guidance to make a submission, please email Rebecca at the IMA to learn how to respond during the comment period. 

Here are several key areas of the Draft Rule along with the AMA’s 2023 revisions for E/M guidelines, as these were released the same week.

2023 Proposed Conversion Factor

With the budget neutrality adjustments, as required by law to ensure payment rates for individual services do not result in changes to estimated Medicare spending, the required statutory update to the conversion factor for CY 2023 of 0%, and the expiration of the 3% increase in PFS payments for CY 2022, the proposed CY 2023 PFS conversion factor is $33.08, a decrease of $1.53 to the CY 2022 PFS conversion factor of $34.61.

Global Services

Due to previous Health and Human Services (HHS) audits (2005 and 2012), investigators found that fewer than expected post-op visits were being performed as part of 10 and 90 day global procedures. Since this could be creating potential overpayments, global services have been under the microscope with CMS for many years.  The idea of the global service package is a consolidated payment capturing the pre-op, procedure, and follow-up care for a set period of time.  CMS and consultants for CMS have historically had a difficult time quantifying post-op visits due to these not requiring coding or claims submission.  Likely, the issue is variable depending on the specialty, surgical service, healthcare delivery, and patient demographic. Regardless, CMS is considering unbundling the E/M portion of the 10 day global (minor procedures) and perhaps major surgeries (90 day global).  CMS is soliciting feedback on how these changes would impact practices if unbundled, new strategies that may not have been considered, and if keeping global payments, whether the E/M portion is mis-valued despite not being updated in the previous final rule.

Telehealth

CMS will extend the timeline for category 3 telehealth services to collect more data on whether these services should be moved to a permanent status.  A short list of services were added to the temporary category 3 list and CMS defined which services would be removed following the termination of the Public Health Emergency (PHE) and the 151 day extension. Other flexibilities, such as allowing telehealth services to be furnished in any geographic area and in any originating site setting will be part of the extension.

CMS is developing 3 new prolonged service codes to use with inpatient services, SNF, and home/resident services and these are recommended for permanent addition.  Although telephone call codes were heavily lobbied to move into category 1 or 2, CMS commented they intend to bundle these codes following the PHE/151 days. Note: Table 8 and Table 10 summarize the CMS code list to be retained and/or permanently removed following the PHE and 151 day extension.

Telehealth modifier and POS guidance will remain the same through the duration of the PHE/151 days with -95 appended to the service and reporting POS code that would have been reported had the service been furnished in person. Following the PHE, CMS will recommend removing modifier -95 and using the following POS:

·      POS "02" - which would be redefined, if finalized, as Telehealth Provided Other than in Patient’s Home (Descriptor: The location where health services and health related services are provided or received, through telecommunication technology. Patient is not located in their home when receiving health services or health related services through telecommunication technology.); and 

·      POS “10” - Telehealth Provided in Patient’s Home (Descriptor: The location where health services and health related services are provided or received through telecommunication technology. Patient is located in their home (which is a location other than a hospital or other facility where the patient receives care in a private residence) when receiving health services or health related services through telecommunication technology.). 

Starting January 1, 2023, a physician or other qualified health care practitioner billing for telehealth services furnished using audio-only communications technology will need to append CPT modifier “93” (Synchronous Telemedicine Service Rendered Via Telephone or Other Real-Time Interactive Audio-Only Telecommunications System: Synchronous telemedicine service is defined as a real-time interaction between a physician or other qualified health care professional and a patient who is located away at a distant site from the physician or other qualified health care professional. The totality of the communication of information exchanged between the physician or other qualified health care professional and the patient during the course of the synchronous telemedicine service must be of an amount and nature that is sufficient to meet the key components and/or requirements of the same service when rendered via a face-to-face interaction) for Medicare approved audio-only telehealth claims.  

CMS will define “home” as: “both in general and for this purpose, a beneficiary’s home can include temporary lodging, such as hotels and homeless shelters. 

For CY 2023, the proposed payment amount for HCPCS code Q3014 (Telehealth originating site facility fee) is $28.61.

Evaluation and Management

The AMA released the 2023 CPT changes for multiple areas of the E/M section of the codebook to include hospital inpatient, hospital observation, emergency department, nursing facility, home or residence services, and cognitive impairment assessment. CMS plans to adopt most of these revisions with a few exceptions as mentioned in the details below. 

The AMA revised the definition of new and established patient:

·       Solely for the purposes of distinguishing between new and established patients, professional services are those face-to-face services rendered by physicians and other qualified health care professionals who may report evaluation and management services. A new patient is one who has not received any professional services from the physician or other qualified health care professional or another physician or other qualified health care professional of the exact same specialty and subspecialty who belongs to the same group practice, within the past three years.

·       An established patient is one who has received professional services from the physician or other qualified health care professional or another physician or other qualified health care professional of the exact same specialty and subspecialty who belongs to the same group practice, within the past three years.

The AMA revised the E/M Introductory Guidelines related to Hospital Inpatient and Observation Care Services:

·      Observation care code have been deleted.  Hospital inpatient and observation care will now be reported under the 99221-99223 (Initial) and 99231-99233 (Subsequent).

·      Hospital discharge codes will be used now for both inpatient and observation.

·      On-call providers or QHP would be considered the same group/specialty and bill as if the initial provider was caring for the patient (i.e. billing subsequent after the initial service).

·      Providers can document a medically appropriate history and/or physical examination, when performed. The nature and extent of the history and/or physical examination are determined by the treating physician or other qualified health care professional reporting the service. The care team may collect information and noting the extent of history and physical examination is not an element in selection of the level of these E/M service codes.

·      Providers can choose between medical decision making (table similar to the outpatient) or time.  Time will include both face-to-face and approved non-face-to-face activities as listed below:

o   Preparing to see the patient (e.g., review of tests)

o   obtaining and/or reviewing separately obtained history

o   performing a medically appropriate examination and/or evaluation

o   counseling and educating the patient/family/caregiver

o   ordering medications, tests, or procedures

o   referring and communicating with other health care professionals (when not separately reported)

o   documenting clinical information in the electronic or other health record

o   independently interpreting results (not separately reported) and communicating results to

o   the patient/family/caregiver

o   care coordination (not separately reported)

·      CMS will be delaying the implementation of the full shared services guidelines, specifically how they are defining substantive (see section below). 

·      Same day admit discharge codes were revised by the AMA. CMS clarified the use of the admission series to follow the 8 to 24 hour rule, and when a separate discharge code is applicable (this will be covered in a later blog).

·      CMS is developing a new prolonged service code GXXX1 that can be added, following the maximum code time (highest code in a series). GXXX1 will carry a time of 15 minutes that must be met or exceeded before applying to a base code. Current inpatient prolonged services codes will be deleted and the AMA will create its own numeric CPT code outside of the special CMS G series.

The AMA revised Emergency Department Services codes 99281-99285 to better define levels of service, criteria will be based on medical decision making as time is not a factor.

·      CMS clarified use of ED codes by consulting providers if a patient is admitted to the inpatient or observation status from the ED setting.

·      CMS also noted that an ED code and critical care code could be billed during the same date, if in fact they are distinguishable as separate services (e.g., patient received evaluation by the provider at 1pm and is stable, at 3pm patient is in respiratory distress and critical care services are performed).

The AMA revised Nursing Facility Services codes similar to the criteria for initial and subsequent hospital.

·      Medical decision making or time will now be the driving determinate for code level.

·      RVU’s will slightly increase based on the RUC review and survey.

·      Code 99218 annual nursing assessment will be deleted as CMS and the AMA felt could be captured in the current initial and subsequent series.

·      CMS will develop a new prolonged service code GXXX2, similar to the same conventions as mentioned for hospital and observation services.

The AMA revised the Home and Residence E/M code family to include services provided in assisted living facilities, group homes, custodial care facilities, and residential substance abuse treatment facilities, as well as a patient’s home.

·      Medical decision making or time will now be the driving determinate for code level.

·      CMS will develop a new prolonged service code GXXX3, similar to the same conventions as mentioned for hospital and observation services.

Other notable changes include the deletion of 99241 and 99251 of the Consultation Series of CPT codes.  CMS does not pay for this series of codes, but some private payors allow providers to use them.  Inpatient prolonged services codes will be deleted with establishment of a new series 993X0 and guidelines.  CMS established their own definition of counting time for prolonged services as mentioned in each of the above areas.

Split (or Shared) E/M Visits

For CY 2023, CMS further delaying the split (or shared) visits policy finalized in 2022.  The new policy received push back from the AMA and lobbying groups due to the new definition of substantive portion to mean more than half of the total time, in order to bill. As directed for 2022, providers can consider substantive portion of a visit to be met by any of the following elements:  

·      Performing a history or exam

·      Making a medical decision

·      Spending time (more than half of the total time spent by the practitioner who bills the visit)

Under the proposal, clinicians who furnish split (or shared) visits will continue to have a choice of history, physical exam, or medical decision making, or more than half of the total practitioner time spent to define the substantive portion, instead of using total time to determine the substantive portion, until CY 2024.

Chronic Pain Management (CPM) Codes

Over the past several years, commenters as part of the draft rule, have lobbied for a separate code series focused on chronic pain management.  As CMS explored these recommendations, and whether it should be managed under E/M services or chronic care management, they are now considering the development of two new G codes to cover this area:

GYYY1: Chronic pain management and treatment, monthly bundle including, diagnosis; assessment and monitoring; administration of a validated pain rating scale or tool; the development, implementation, revision, and maintenance of a person-centered care plan that includes strengths, goals, clinical needs, and desired outcomes; overall treatment management; facilitation and coordination of any necessary behavioral health treatment; medication management; pain and health literacy counseling; any necessary chronic pain related crisis care; and ongoing communication and care coordination between relevant practitioners furnishing care (e.g. physical therapy and occupational therapy, and community- based care), as appropriate. Required initial face-to-face visit at least 30 minutes provided by a physician or other qualified health professional; first 30 minutes personally provided by physician or other qualified health care professional, per calendar month. (When using GYYY1, 30 minutes must be met or exceeded.)

GYYY2: Each additional 15 minutes of chronic pain management and treatment by a physician or other qualified health care professional, per calendar month (List separately in addition to code for GYYY1). (When using GYYY2, 15 minutes must be met or exceeded.)

These codes are still in development and CMS is seeking feedback to finalize the specific criteria.  If your practice manages patients with chronic pain, we encourage you to submit comments on the following:

·      Opinion on the administration of a validated pain assessment rating scale or tool.

·      Adding development of and/or revisions to a person-centered care plan that includes goals, clinical needs, and desired outcomes, as outlined above and maintained by the practitioner furnishing CPM services.

·      Including health literacy counseling as an element of the CPM for the patient to better manage their illness.

·      Revising the time criteria to be increased for GYYY1 and GYYY2.

·      How these visits should be conducted in-person, via telehealth, or the use of a telecommunications system, and any implications.

·      Opinion on what should be face-to-face with the provider and what could be managed by axillary staff.

Behavioral Health Services 

As part of the Behavioral Health Strategy introduced last year, CMS included a goal to improve access and quality of mental health care services.  They further identified an objective to “increase detection, effective management, and/or recovery of mental health conditions through coordination and integration between primary and specialty care providers.” 

Given the feedback and need for more mental health services, CMS proposed to create a new General Behavioral Health Integrative Services (BHI).  These services would be personally performed by a clinical psychologist or clinical social workers as part of monthly care integration where the mental health services furnished by these providers serve as the focal point of care integration. The draft rule further proposed to allow a psychiatric diagnostic evaluation to serve as the initiating visit for the new general BHI service. To better increase access, CMS would revise the current regulation (42 CFR 410.26) to allow behavioral health services to be provided under the general supervision of a physician or NPP, versus direct supervision.  This would also include relaxing the incident-to guidelines to allow a licensed professional counselor (LPC) and licensed marriage and family therapist (LMFT) to bill under general supervision of a physician or non-physician practitioner.

Under-Utilized Preventive Services

CMS analytics are showing potentially under-utilized services that could represent a high value to patient care.  CMS is soliciting comment to understand why providers might not be using these services based on code criteria, access, or other barriers.  Patient education is a likely contributor to misunderstanding what these benefits actually are. Annual Wellness Visits (AWV’s) are a classic example of a patient thinking the service represents a head-to-toe exam, where the regulation and code description focuses on care providers, safety, cognition, and addiction. We strongly encourage providers to submit an opinion on code definition, regulatory confusion, reimbursement, access, and/or other complexities to providing these services for CMS to consider revising.

● Preventive Services
● Annual Wellness Visits
● Diabetes Management Training
● Screening for Diabetes
● Referral to appropriate education/prevention/training services
● Immunizations / vaccinations
● Cancer screenings
● Cardiac rehabilitation services
● Intensive Behavioral Therapy for obesity
● Opioid treatment programs
● Complex/Chronic Care Management
● Cognitive Assessment & Care
● Behavioral Health Integration Services

The text of the proposed rule can be accessed at: https://public-inspection.federalregister.gov/2022-14562.pdf.

Additional links include: