Avalanche of New Guidance from CMS No Match for COVID-19

Providers and federal officials alike continue to adjust to the new normal, and an uncertain future.

EDITOR’S NOTE: Dr. Ronald Hirsch, vice president of R1 RCM, and healthcare attorney David Glaser, of Fredrikson and Bryon, reported these two stories during this week’s live edition of Monitor Mondays. What follows are excerpts from their two reports.

The COVID-19 pandemic shows no sign of relenting, and the government and payers continue to adapt their regulations and policies.

Through all of this, many had forgotten that the Centers for Medicare & Medicaid Services (CMS) updated the Important Message from Medicare (IMM), the Detailed Notice of Discharge (DND), and the Medicare Outpatient Observation Notice (MOON) earlier this year.

“Although the old forms expired Dec. 31, CMS allowed a three-month grace period until April 1,” Ronald Hirsch, MD told Monitor Mondays listeners during today’s broadcast. “When I contacted CMS about this, they indicated that if hospitals were going to miss the deadline, to contact them. Then, late last week, CMS indicated to another person that they wanted the new forms used by May 1.”

Hirsch added that this is not an officially announced grace period, so if you have missed the deadline, it is recommended that you notify CMS at https://appeals.lmi.org/DAPmailbox/mailbox?PageFilter=bni.

We are all hearing quite a bit about telehealth and the rapid transition from office visits to visits conducted by audio/video apps. But it must be remembered that while we spend a lot of time talking about Medicare, there are almost 1,000 companies that offer health insurance, and each one of them may have its own rules. Some will allow billing office visits with the place of service listed as “office,” as CMS is allowing, but others want the place of service listed as 02, which is designated for telehealth. Some want a modifier, some don’t.

Hirsch said he has yet to find a definitive reference for all payers, adding that “if anyone has kids at home looking for a project, this would be perfect.”

Hirsch also said that CMS has waived the utilization review regulations, reminding Monitor Mondays listeners that the waiver doesn’t mean that you can admit everyone as inpatients.

“First, CMS did not waive compliance with the two-midnight rule, and for all other payers,” Hirsch said, quoting from a notice from Humana that read, “although medical record claim reviews are suspended, we may request medical records retrospectively once the suspension is lifted.”

“But,” Hirsch warned, “if things at your facility do get bad, and you have to put admission status aside, remember that waiving the utilization review regulations means that condition code 44 is also waived.”

“If a doctor admitted a Medicare patient who should have been outpatient, just get a new order,” Hirsch said. “No utilization review (UR) committee review, no written notification to the patient, unless the patient spends over 24 hours in observation, in which case delivery of the MOON is mandated.”

“These are unprecedented times for so many different reasons,” Hirsch added during the broadcast. “But nothing exceeds the uniqueness of this virus in how it acts. Nearly every day, there is new medical treatment information. A recent study released in the New England Journal of Medicine looked at the treatment of patients with head and neck cancer. That study collected patient data over three years, and then data analysis and peer review took another two years. The study of chloroquine for COVID-19 conducted in France collected data over two weeks and then was published the next week. The peer review process is crucial to allow independent experts to analyze the methods, the patient selection criteria, and the findings. Skipping proper peer review can subject patients to a treatment that causes harm without any benefit. Respecting science is just as important in a pandemic as during normal times.”

Hirsch also responded to new reports concerning the number of ventilators available in U.S. hospitals, noting that when doctors normally decide when to place a patient on a ventilator, the same rationale leveraged does not always apply to COVID-19 patients. There have been many reports of patients with COVID-19 who have profoundly low oxygen levels on oximetry but are comfortable, with no respiratory distress, even talking and texting.

“These patients often do very well without being placed on a ventilator, and only with high-flow oxygen,” Hirsch said. “And the key appears to be asking these patients to lie on their stomach. It is not clear why this prone position works, but it does. If this interests you or you want to pass on this information to your clinicians, I would advise you to look at the website EMcrit.org. If your doctors are not yet proning non-intubated patients, ask them to try it, nicely.”

“Regulatory change is happening so quickly that between the time we finished the live broadcast of Monitor Mondays on March 30^, and the time the podcast was posted a few hours later, my comments about topics like the use of telehealth and the place of service were outdated,” said David Glaser, a healthcare attorney with Fredrikson and Byron and a permanent panelist on Monitor Mondays. “With that in mind, reading this article anytime after it is published, you will want to see if any information has changed. Typically, I might be frustrated with that rapid change, but in this situation, CMS deserves tremendous credit.  They are attempting to adapt complex regulations to a crisis. While I think there are still additional changes they should make, thus far they have stressed the goal of safety for patients and healthcare professionals over regulations.”

Glaser reported during his segment on Monitor Mondays that as it pertains to the many recent changes to telehealth, there is a regulatory distinction between “telehealth,” which can be done on a device that has both audio and video capabilities (think smartphone, computer software, FaceTime, or Skype), and an old-fashioned telephone, the sort of thing that has a rotary dial or one of those old cranks. 

“It would almost be better to think of ‘telehealth’ as ‘videohealth,’ except that CMS uses the term to describe a smartphone even when video component is not actually used during the encounter,” Glaser explained. “The bottom line is that CMS continues to distinguish between smart phones and ‘dumb’ phones, although as described below, that should change, and there is reason to hope it might.”

Glaser described a long list of services that could be done via telehealth, noting that the full list is available at this link: https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes). 

“To repeat,” warned Glaser, “telehealth is when you have both audio and visual capability. For these telehealth services, you bill almost exactly as you would had the visit had occurred in person. The place of service code would be the location the patient encounter would have occurred, but for the outbreak. If the visit would have been in the clinic, you’ll use 11. If it would have occurred in an outpatient hospital, you use 19 or 22, as appropriate. This is counterintuitive, but you do not use Code 2 in telehealth. In the interim final rule, CMS made it clear that you use the location the patient would have come to.”

CMS did revise the FAQ, suggesting that you need to enroll a physician’s home when the physician performs telehealth from a home office. During this emergency, according to Glaser, Box 32 contains the address where the physician would typically have performed the service.

“While telehealth is allowed for a wide range of codes, including therapy,” Glaser said, we need to make one visit to crazy tow“rehabilitation codes are among those that can be performed via telehealth.” 

But the Medicare statute does not allow physical therapists, occupational therapists, or speech language pathologists to provide telehealth, Glaser added; CMS has concluded that, therefore, they’re not allowed to authorize those individuals to perform telehealth during the national emergency. 

“To be clear, you can do PT, OT, and SLP, but the PT, OT, or SLP can’t bill for it. This frustrates me because when the anti-markup rule was issued, CMS opted to extend it to the professional component of the service, even though that state did not authorize that. At the time, CMS stated that it was going beyond the law because ‘Congress’s omission may have been inadvertent,’” Glaser said. “For whatever reason, CMS was unwilling to do the same thing here. CMS should. The good news is that Beth, a compliance guru at one of my clients, has an idea that I think solves this in most cases: bill incident-to. As long as a physician has initiated the course of treatment, and can be available via a smartphone, that is an option. Unfortunately, it won’t help therapists in private practice.”  

There is one way in which billing for telehealth differs from a traditional in-person visit, Glaser added: there are new instructions for choosing the level of service. While you will use the same category of code (new patient, established patient, subsequent hospital care, etc.), the level of code is determined differently. For a telehealth encounter, Glaser explained, the level of service will be determined based on your choice of medical decision-making or time, and you can use time even if no counseling occurs. Neither the history nor the exam plays any role in the coding. 

“While you need to document them for medical reasons, they’re irrelevant for billing,” Glaser said. “This is a great change, but it leaves one giant question: if we are (rightly) going to discount the need for the physical exam during this crisis, why not allow traditional E&M (evaluation and management) codes for telephone E&M visits? This makes absolutely no sense, and I hope CMS, which did a truly amazing job coming up with these rules in a hurry, will change its mind on this one.” 

The good news, Glaser concluded, is that even though you can’t use the traditional E&M codes for encounters on a simple landline telephone, you can still bill. CMS is going to allow telephone codes: 99441 to 43 for physicians, and 98966 to 68 for nonphysicians. 

“This is important and counterintuitive, but even though the code description states that they should be used only for established patients, CMS will permit their use for new patients as well,” Glaser said. 

“I want to reiterate at how impressed I am at the interim rule,” Glaser added. “It’s thoughtful and issued swiftly. It makes it clear that CMS is trying to protect healthcare workers and patients. In other words, if you find yourself with a dilemma on how to handle something, put safety first, and we’ll figure out the billing ramifications later.”

Here is a list of the codes for which CMS is allowing telehealth billing, right now:

• Emergency Department Visits, Levels 1-5 (CPT® codes 99281-99285)
• Initial and Subsequent Observation and Observation Discharge Day Management (CPT codes99217- 99220; CPT codes 99224- 99226; CPT codes 99234- 99236)
• Initial Hospital Care and Hospital Discharge Day Management (CPT codes 99221-99223; CPT codes 99238- 99239)
• Initial Nursing Facility Visits, All Levels (Low, Moderate, and High Complexity) and Nursing Facility Discharge Day Management (CPT codes 99304-99306; CPT codes 99315-99316)
• Critical Care Services (CPT codes 99291-99292)
• Domiciliary, Rest Home, or Custodial Care Services, New and Established Patients (CPT codes 99327- 99328; CPT codes 99334-99337)
• Home Visits, New and Established Patients, All levels (CPT codes 99341- 99345; CPT codes 99347- 99350)
• Inpatient Neonatal and Pediatric Critical Care, Initial and Subsequent (CPT codes 99468- 99473; CPT codes 99475- 99476) 03/30/2020 2
• Initial and Continuing Intensive Care Services (CPT code 99477- 994780)
• Care Planning for Patients with Cognitive Impairment (CPT code 99483)
• Psychological and Neuropsychological Testing (CPT codes 96130- 96133; CPT codes 96136- 96139)
• Therapy Services, Physical and Occupational Therapy, All Levels (CPT codes 97161- 97168; CPT codes 97110, 97112, 97116, 97535, 97750, 97755, 97760, 97761, 92521- 92524, 92507) (Remember, the current position is that these services can’t be billed by a therapist.)
• Radiation Treatment Management Services (CPT codes 77427)