Reflecting PCCM concerns in reimbursement plan

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