September 11, 2023
The Honorable Chiquita Brooks-LaSure
Administrator
Centers for Medicare & Medicaid Services
7500 Social Security Boulevard
Baltimore, MD 21244-1850
Re: Medicare Program and Medicaid Programs; CY 2024 Payment Policies
Under the Physician Fee Schedule and Other Changes to Part B Payment
Policies; Medicare Shared Savings Program Requirements; Medicare Advantage; Medicare and
Medicaid Provider and Supplier Enrollment Policies; and Basic Health Program (CMS
1784-P)
Dear Administrator Brooks-LaSure:
On behalf of our membership, the American Thoracic Society (ATS) and the
American College of Chest Physicians (CHEST) appreciate the opportunity
to submit our shared comments on the Calendar Year (CY) 2024 Medicare
Physician Fee Schedule Proposed Rule (MPFS or “the Proposed Rule”). Our
societies represent over 25,000 pulmonary, critical care and sleep
specialists dedicated to prevention, treatment, research and cure of
respiratory disease, critical care illness and sleep disordered
breathing. Our members provide care to Medicare beneficiaries for a wide
range of conditions including critical care illness, asthma, COPD, lung
cancer, alpha-1 antitrypsin deficiency, pulmonary fibrosis, pulmonary
hypertension, and other disorders of the lung, as well as sleep
disorders.
The Proposed Rule includes several policy changes and payment revisions
that are of direct interest and impact to our members.
ATS and CHEST are submitting comments on the following provisions of the
CY 2024 MPFS Proposed Rule:
• CY 2024 Conversion Factor
• Determination of PE RVUs (Section II.B.)
• Payment for Medicare Telehealth Services Under Section 1834(m) of the
Social Security Act (the Act) (Section II.D.)
• Valuation of Specific Codes (Section II.E.)
• Evaluation and Management (E/M) Visits (Section II.F.)
• Appropriate Use Criteria (AUC) for Advanced Diagnostic Imaging Program
(Section II.J.)
• Proposals on Medicare Parts A and B Payment for Dental Services
Inextricably Linked to Specific Covered Medical Services (Section II.K.)
• Pulmonary Rehabilitation, Cardiac Rehabilitation and Intensive Cardiac
Rehabilitation Expansion of Supervising Practitioners (Section III.E.)
• Medicare Part B Payment for Preventive Vaccine Administration Services
(Section III.H.)
• Medicare and Medicaid Provider and Supplier Enrollment (Section
III.K.)
• Recommendations Regarding Critical Care Billing for CPT Codes 99291
& 99292
ATS and CHEST’s recommendations are outlined in full detail below.
CY 2024 Conversion Factor
ATS and CHEST share concern on the impact of the proposed conversion
factor applicable to CY 2024. For 2024, CMS is proposing a conversion
factor of $32.75, which represents a decrease of $1.14 or -3.34%. We
recognize that the Agency must adhere to the budget neutrality
requirement within the confines of legislation and statute, and CMS does
not have the authority to provide additional funds. However, we note
that as of May 2023, the annual U.S. inflation rate was at 4.0 percent.
While the inflation rate in the health sector has been slightly lower
than the general economy, physicians and other Medicare Part B providers
are experiencing the same economic challenges the rest of the U.S. is
facing with persistent inflation. The proposed conversion factor cut of
3.34 percent, while not unexpected, is disappointing and will create
economic challenges for Medicare providers, and it adds to the strain of
three straight years of decline in the conversion factor. It will also
decrease patient access. ATS and CHEST support Congressional changes to
the statute that would allocate additional funds as well as provide for
a positive conversion factor in years to come.
Determination of PE RVUs (Section II.B.)
Adjusting RVUs to Match the PE Share of the Medicare Economic Index
(MEI)
In the CY 2023 PFS Final Rule, CMS finalized the decision to rebase and
revise the MEI to reflect current market conditions faced by physicians
in furnishing outlined services. In efforts to balance payment stability
and predictability and incorporate the most appropriate data sources,
CMS is not proposing to incorporate the MEI in rate setting for CY 2024.
The ATS and CHEST support this additional delay in
implementation, while still supporting the need for updating input
data to reflect current market conditions faced by physicians. We
support and urge the Agency to continue to review the most recently
available data sets as they move toward implementation of future MEI
updates.
Payment for Medicare Telehealth Services Under Section 1834(m) of
the Social Security Act (the Act) (Section II.D.)
Proposed Clarifications and Revisions to the Process for Considering
Changes to the Medicare Telehealth Services List
CMS proposes a number of updates to clarify and modify the process for
making changes to the Medicare Telehealth Services list. Among these
updates include the proposal to modify the current Category 1, 2, and 3
methodology and classification system, and label services as either
“permanent”
or “provisional.” Under this proposal, CMS would move codes currently
under Category 1 and 2 to the “permanent” list, while codes under a
temporary Category 2 classification or Category 3 would be labeled as
“provisional.”
CMS proposes to implement a five-step process for analysis for services
under consideration for addition or removal, or a change in status of
classification on the Medicare Telehealth Services List. This five-step
process would entail the review of evidence regarding clinical benefit,
among other factors.
Though the ATS and CHEST appreciate the efforts to simplify the
classification process, we urge CMS to provide further details on
the evidentiary standards and appropriate metrics for analyzing the
permanent and provisional codes.
Frequency Limitations on Medicare Telehealth Subsequent Care
Services in Inpatient and Nursing Facility Settings, and Critical
Care Consultations
Applicable to CY 2024, CMS proposes to remove frequency limitations that
existed prior to the public health emergency (PHE) for certain inpatient
visits, subsequent nursing facility visits, and critical care
consultation service codes. These limitations were waived during the
PHE, and CMS has exercised its enforcement discretion and will not
consider the limitations through December 31, 2023. The proposal would
align the expiration of this flexibility with that of other telehealth
flexibilities.
The frequency limitations are arbitrary and may further limit access to
clinically appropriate care.
We support CMS’s proposal to remove frequency limitations for CY
2024. We look forward to further review of Medicare claims data to
better understand how telehealth services are addressing Medicare
beneficiary needs before making further policy changes to Medicare
telehealth policy.
Telephone Evaluation and Management Services
CMS proposes to continue to provide coverage and payment for telephone
E/M services through December 31, 2024, as required by statute. CMS also
proposes to continue to assign active payment status to the codes for
the non-physician telephone services (98966 - 98968).
We believe audio-only telephone services are important services in
caring for certain patients, particularly the most elderly patients or
patients with low income, both of whom may not have access to more
advanced audio-visual or broadband technology. We note that audio-only
E/M services are not simple phone calls to schedule a visit but can
often involve complicated conversations and evaluations.
We appreciate CMS’s proposal to continue to pay for physician
and non-physician telephone services through December 31, 2024, and
urge CMS to finalize the proposed coverage and payment and to make
this proposal permanent.
Requests to Add Services to the Medicare Telehealth Services List
for CY 2024
Cardiovascular and Pulmonary Rehabilitation
ATS and CHEST support CMS’s proposal to continue to allow cardiac and
pulmonary rehabilitation services (CPT 93797 & CPT 94624) to remain
on the Medicare Telehealth Services list for calendar year 2024. Our
experience with providing pulmonary rehabilitation remotely during the
COVID pandemic has shown this service can be safely and effective
provided to selected Medicare beneficiaries. We understand that the
current statute prevents CMS from taking further action to add pulmonary
and cardiac rehabilitation permanently to the Medicare Telehealth
Services list. ATS and
CHEST will continue our efforts to seek Congressional legislation to
permanently add pulmonary and cardiac rehabilitation to the Medicare
Telehealth Services list.
Telehealth Services Furnished in Teaching Settings
ATS and CHEST support CMS’s proposal to allow teaching
physicians to use audio/video real-time communications technology when
the resident furnishes Medicare telehealth services in all residency
training locations through the end of CY 2024. We agree that allowing
the virtual presence to meet the requirement that the teaching physician
be present for the key portion of the service is an appropriate policy.
Valuation of Specific Codes (Section II.E.)
Services Addressing Health-Related Social Needs (Community Health
Integration Services, Social Determinants of Health Risk Assessment,
and Principal Illness Navigation Services)
In general, ATS and CHEST support CMS’s proposals regarding principal
illness navigators (PINs), community health integration (CHI) and social
determinants of health (SDOH). We appreciate the Administration’s
efforts to address the well-documented barriers to health experienced by
many vulnerable populations in the U.S. and believe that CMS’s increased
attention to addressing these barriers will improve the overall health
of the nation.
ATS and CHEST agree with many of the observations and recommendations
about these policies noted in AMA’s comments. We urge CMS to carefully
consider the AMA comments as it finalizes these important policies on
PIN, CHI and SDOH.
Evaluation and Management (E/M) Visits (Section II.F.)
Office/Outpatient (O/O) E/M Visit Complexity Add-on Implementation
CMS is proposing to create an add-on G-code for selected E/M services.
The proposed code (code G2211) is intended to recognize the inputs
associated with E/M visits for primary care and the care for patients
with chronic complex conditions. The code can be used with outpatient
visits. CMS predicts, when implemented, the new G-code will redistribute
significant Medicare funds from procedural services to E/M providers.
ATS and CHEST support CMS’s proposal to create and implement an add-on
G-code to better recognize and reimburse for physicians caring for
Medicare beneficiaries with complex chronic conditions.
We urge CMS to move forward with the proposed G-code in the 2024
Final Rule.
Split (or Shared) Visits
CMS is proposing to delay implementation of a split/shared E/M billing
allocation. In prior years, the agency has proposed and finalized
revised policy regarding who should be the primary biller when a
split/shared E/M services is provided to a Medicare beneficiary.
As we have noted in prior comments, ATS and CHEST have concerns with the
revised CMS policy on split/shared E/M billing.
We appreciate and support CMS’s proposal to delay implementation
of the revised guidelines for billing attribution for split/shared
E/M services. We also urge CMS to use the additional time to solicit
input from the physician community to further revise the
split/shared policy to fully recognize the value medical
decision-making plays in E/M services and move away from a “counting
minutes” approach for split/shared E/M billing attribution.
Appropriate Use Criteria (AUC) for Advanced Diagnostic Imaging
Program (Section II.J.)
CMS is proposing to stop the Appropriate Use Criteria program and
rescind the underlying regulations regarding the AUC. The AUC program
was created by Congress to reduce the use of inappropriate diagnostic
imaging services. Under the AUC program, physicians ordering diagnostic
imaging were required to document that they used a clinical decision
support mechanism to ensure appropriate use of diagnostic imaging.
However, the AUC program was not well-received by many providers and was
viewed by many as inappropriate interference in the physician
decision-making. We applaud CMS for this decision as the implementation
would be burdensome without clear benefits.
We recommend CMS finalize the proposal to indefinitely suspend
the AUC. Furthermore, we urge CMS to limit prior authorization and
its burden on physicians and ultimately their patients.
Proposals on Medicare Parts A and B Payment for Dental Services
Inextricably Linked to Specific Covered Medical Services (Section
II.K.)
ATS and CHEST support CMS’s proposal to offer select dental services to
Medicare beneficiaries who are initiating cancer therapy. The proposed
policy would expand on CMS’s current dental coverage policy for patients
receiving organ transplants and heart valve surgery. We note that proper
dental treatment is important in the treatment of many cancers including
lung cancers.
Pulmonary Rehabilitation, Cardiac Rehabilitation and Intensive
Cardiac Rehabilitation Expansion of Supervising Practitioners
(Section III.E.)
CMS is proposing to amend the definition of pulmonary rehabilitation,
cardiac rehabilitation, and intensive cardiac rehabilitation to allow
physicians and non-physician providers to provide supervision of these
programs. We believe allowing NPPs to provide supervision for pulmonary
rehabilitation (and cardiac rehabilitation) programs will continue to
ensure the safety and quality of these programs while helping expand
access to pulmonary programs in more rural and underserved areas.
ATS and CHEST support the definition change and conforming
revisions to the regulations to expand supervision of pulmonary
rehabilitation program to non-physician providers.
Medicare Part B Payment for Preventive Vaccine Administration
Services (Section III.H.)
ATS and CHEST support CMS’s proposal to continue payments for home
administration of COVID-19 vaccines and expand home administration
payment to other vaccines including pneumococcal, influenza, and
hepatitis B vaccines. We support CMS’s proposal to make home payment
and expansion of covered vaccine permanent policy.
Medicare and Medicaid Provider and Supplier Enrollment (Section
III.K.)
Revocation and Denial Reasons and Revisions to Other Revocation
Policies
ATS and CHEST have serious concerns with the Agency proposal to expand
authority to remove providers from participating in the Medicare
program.
First, CMS has failed to justify why their existing authority is
insufficient to protect program integrity. We urge CMS to directly
engage with the provider community via town hall discussions, request
for comments and other modes of dialogue before initiating such a
sweeping expansion of administrative authority.
Second, we note CMS is now proposing to list misdemeanors as sufficient
grounds to remove providers from Medicare enrollment. We oppose this
expansion of punitive federal authority. We further note, with the rapid
politicization of health care – especially in reproductive services and
gender affirming care services – physicians are now under threat of
being charged for providing medically appropriate care in many states.
Adding revocation of Medicare and Medicaid enrollment will further
“criminalize” appropriate care, place physicians at further legal and
financial risk for providing such appropriate care and likely reduce
access to essential services for many vulnerable populations.
ATS and CHEST agree with the concerns and recommendations in the
comments submitted by the American Medical Association. We urge the
Agency to carefully consider the AMA’s comments regarding expansion
of Revocation policies.
Recommendations Regarding Critical Care Billing for CPT Codes 99291
& 99292
ATS and CHEST are disappointed CMS did not address coding issues for
critical care services in the proposed CY 2024 rule. As noted in our
previous communication with the Agency, we remain concerned that CMS’s
recent ”technical correction” requires providers to conduct 105 minutes
of critical care services before being allowed to report CPT 99292. We
urge CMS to return to the long-standing pre-2022 policy.
20+ Years of Stable Coding and Billing Policy -For over 20
years, the definition and time application of critical care coding and
billing guidance has been unchanged. The primary critical care codes
are:
• 99291 – critical care, first hour (30-74 minutes)
• 99292 – critical care, subsequent 30 minutes
The correct coding rules for critical care, including a timetable, were
published in an AMA CPT Assistant article in December 1998 and have been
stable since that time. For cumulative critical care services of less
than 30 minutes provided during a calendar day, physicians should report
an appropriate E/M code. For a cumulative critical care time of 30 and
74 minutes provided during a calendar day, physicians should report CPT
99291. For a cumulative critical care time of 75 to 104 minutes during a
calendar day, physicians should report one unit CPT 99291 for the first
hour of care and one unit of CPT 99292 for the subsequent 30 minutes.
For a cumulative critical care time from 105 to 134 minutes, physicians
should report one unit of CPT 99291 and two units of CPT 99292.
Providers would report additional units of CPT 99292 for each additional
30 minutes of critical care provided on the same calendar day.
As noted, the above definitions on the appropriate use of the time
increments for each code have been unchanged for over 20 years.
Billing Patterns Have Been Stable for 20 Years-A
review of Medicare data shows that billing patterns for critical care
codes have been remarkably stable over time. Approximately 10 percent of
all critical care services reporting 99291, report one or more units of
99292.
We share this data to illustrate that billing patterns have been
remarkably stable over time, and that there is no significant relative
change that might trigger further scrutiny or concern on the part of
CMS.
The New Policy Effectively Devalues the CPT 99291 Physician Work by
30% -
Under previous policy, physicians were required to provide at least 74
minutes of critical care time before they could bill the first unit of
CPT 99292. Under the newly “corrected” CMS policy, physicians must now
provide 104 minutes of critical care service before they can bill the
first unit of 99292. The net result is that CMS has administratively
made the duration of the 99291 code 30 minutes longer, while maintaining
the same physician work value. Put in different terms, this policy
change has effectively devalued the CPT code 99291 (critical care, first
hour 30-74 minutes) by 30%. We assume the devaluation effect was
unintended, but regardless of intent the end result is the unprecedented
devaluation of critical care providers.
Time and Other Families of CPT Codes -We understand that CMS is
wrestling with how to apply the use of “time” across a several different
families of CPT codes. We appreciate CMS’s desire to develop a
consistent use of time across a wide range of CPT codes. However, CMS’s
goal of a consistent application of time is not sufficient justification
to fundamentally revalue critical care services. As we noted during our
recent call with senior CMS staff, “time” when applied to critical care
services is extremely limited by the CPT guidance. We do not believe
that a general “time” rule should be applied for situations when time allowed is clearly defined with specific
criteria. Below are a few examples from the AMA CPT© introductory
guidance.
“Codes 99291, 99292 are used to report the total
duration of time spent in provision of critical care
services to a critically ill or critically injured patient, even
if the time spent providing care on that date is not continuous. For
any given period of time spent providing critical care services,
the individual must devote his or her full attention to the patient and,
therefore, cannot provide services to any other patient during the same
period of time. Time spent with the individual patient
should be recorded in the patient’s record. The time that can be
reported as critical care is
the time spent engaged in work directly related to the
individual patient’s care whether that time was spent at the
immediate bedside or elsewhere on the floor or unit.
For example, time spent on the unit or at the nursing station on the
floor reviewing test results or imaging studies, discussing the
critically ill patient’s care with other medical staff or
documenting critical care services in the medical record would be
reported as critical care, even though it does not occur at the
bedside. Also, when the patient is unable or lacks capacity to
participate in discussions, time spent on the floor or unit with
family members or surrogate decision makers obtaining a medical
history, reviewing the patient’s condition or prognosis, or
discussing treatment or limitation(s) of treatment may be reported
as critical care, provided that the conversation bears directly on
the management of the patient. Time spent in activities that occur
outside of the unit or off the floor (e.g., telephone calls whether
taken at home, in the office, or elsewhere in the hospital) may not
be reported as critical care
since the individual is not immediately available to the
patient.[…] Code 99291 is used to report the first
30-74 minutes of critical care on a given date. It
should be used only once per date even if the time spent by the
individual is not continuous on that date. Critical care of less than 30
minutes total duration on a given date should be reported with the
appropriate E/M code. Code 99292 is used to report additional block(s)
of time, of up to 30 minutes each beyond the first 74
minutes .”
We further note there are many other examples in the Medicare program
where policy allows billing an additional unit of a time-based code once
a threshold of 50% of the time of the next unit of time-based care is
provided. Such examples cross many specialties and disciplines,
including physical therapy (CPT 97110 – a 15-minute time-based code
billable after the 8th minute of care is provided), speech language
pathology and occupational therapy (CPT 97129 – a 15-minute time-based
code billable after the 8th minute of care is provided), and both
primary care and many medical specialties (CPT 99497 and 99498 for
advance care planning). We believe these examples provide ample
precedent for CMS to return to its previous policy regarding appropriate
billing for 99292.
CMS’s Policy Change Meets the Definition of Compelling Evidence –
We will continue to advocate for this change to be made by CMS. Barring
any action by the Agency, we intend to seek revisions through the CPT
and RUC process with regards to the critical care code structure and/or
value. We are confident that unilateral devaluation of the 99291 code by
CMS will meet the threshold of the AMA RUCs “compelling evidence” needed
to move forward to either CPT revisions and/or RUC re-valuation. We
further note, the AMA CPT and AMA RUC in the past several years have
worked closely with CMS and the broader physician community to make
needed improvements in the E/M coding family. ATS and CHEST recognize
and appreciate the work that has been done to address E/M code
definition changes and subsequent values. We are concerned that a
revision of the critical care codes could add avoidable instability to
the family of E/M codes as well.
For all the above reasons, we strongly recommend CMS return to the
pre-2022 guidelines for appropriate billing of critical care code CPT
99291 and 99292. We believe that the critical care guidelines are specific enough and different enough from other services
to allow CMS to affirm the AMA CPT time rules rather than CMS modifying
a long-standing and smoothing working policy.
Conclusion
ATS and CHEST appreciate the opportunity to comment on the Medicare
Physician Fee Schedule Proposed Rule for 2024. We urge the Agency to
strongly consider our recommendations aimed at improving the proposed
Medicare payment policies and ensure adequate support for patients and
physicians. We welcome ongoing collaboration and communication to
achieve this.
Sincerely,
M. Patricia Rivera, MD, ATSF
President America Thoracic Society
Doreen J. Addrizzo-Harris, MD, FCCP
President American College of Chest
Physicians
Omar Hussain, DO
ATS Co-Chair Joint ATS/CHEST Clinical Practice Committee
Amy Ahasic, MD
CHEST Co-chair Joint ATS/CHEST Clinical Practice
Committee