OPPS Payment Available for In-Home Services After Public Health Emergency Ends—CMS Issues CY 2023 OPPS Final Rule

• November 22, 2022

• Ryan M. Martin , Hancock Daniel & Johnson PC

Prior to the COVID-19 Public Health Emergency (PHE), Medicare would typically not pay for hospital outpatient therapeutic services that were furnished to a beneficiary outside of the hospital or outside of a provider-based department (PBD) of the hospital. However, for the duration of the PHE, the Centers for Medicare & Medicaid Services (CMS) waived these Medicare coverage requirements to allow providers the flexibility to continue to reach patients despite COVID-19 restrictions and infection control concerns.[1]

During the PHE, a Medicare beneficiary’s home may be considered a temporary expansion location or PBD of a hospital. Furthermore, hospitals are permitted to bill under OPPS (or CAH payment methodology) for certain services furnished in the Medicare beneficiary’s home as if the services were performed in the hospital. This includes services furnished using telecommunication technology. To effectuate this change, CMS established a process where hospitals can establish the beneficiary’s home as a PBD of the hospital. After the PHE ends, absent any changes, beneficiaries would need to once again travel to the hospital to continue receiving outpatient hospital services.

On November 1, 2022, CMS released the Calendar Year 2023 Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) Payment System Final Rule (Final Rule). In the Final Rule, CMS took important steps to solidify some of the waivers that had been granted for behavioral services and will now permanently allow OPPS coverage for certain behavioral health services provided outside of the hospital or PBD. CMS acknowledges that these services will be provided through telehealth and has established several rules that providers must follow to continue to receive reimbursement.

Changes to Behavioral Health Telehealth Services as a Result of the Final Rule

Due to concerns related to continuity of care, a significant rise in mental health conditions and substance use, and the high utilization of behavioral health services during the PHE, CMS designated certain services provided for the purposes of diagnosis, evaluation, or treatment of a mental health disorder performed remotely by clinical staff of a hospital to beneficiaries in their homes as hospital covered PBD services under OPPS. CMS noted in the Final Rule that when the PHE ends, the flexibility which allowed the hospital to bill for an originating site facility fee for services provided to beneficiaries in the home would also end.

Process for Initiating and Billing Hospital Behavioral Health Telehealth Delivered Services to Patients in Their Homes

Under the new rules, hospitals will no longer be required to add the beneficiary’s home as a PBD or provide notice to the CMS Regional Office that the hospital will provide services outside of the four walls of the hospital.[2] Instead, CMS has created OPPS-specific “C-Codes” for hospitals to utilize when billing for telehealth services provided to a beneficiary located in their home. The proposed code descriptors specify that the beneficiary must be in their home and that there is no associated professional service billed under the physician fee schedule (PFS). Please see below for a list of the codes and descriptors:

As always, all hospital staff performing telehealth services must be licensed to furnish the telehealth services consistent with all applicable state laws regarding scope of practice.

Payment Rates for Hospital Billing of Behavioral Health Telehealth Services Delivered to Patients in Their Homes

Importantly, CMS will not pay the hospital for the telehealth services at the full OPPS rate it currently pays during the PHE. CMS believes that when beneficiaries are in their homes and not physically within the hospital, the hospital is not incurring all the costs associated with an in-person service and as a result, the full OPPS rate does not accurately reflect those costs to the hospital. Instead, CMS is setting the OPPS rate for the C-Codes at the equivalent PFS amount, which reflects the professional work associated with performing the telehealth service but does not reflect practice expense costs (i.e., clinical labor, equipment, or supplies). This will result in a lower payment to hospitals for telehealth services that are provided to beneficiaries in their home versus a patient who is located in the hospital.

CMS will pay hospitals for C7900 and C7902 at the corresponding PFS rate, subject to an Ambulatory Payment Classification (APC) adjustment, for CPT codes 96159 and 96158, respectively. The table below demonstrates the payment rates for the corresponding C-codes.

In-Person Visit Requirements for Behavioral Services Provided to a Patient Through Telehealth

Congress took steps to extend the telehealth waivers for a brief period of time after the end of the PHE. The Consolidated Appropriations Act of 2022 (CAA), extended the previously issued federal telehealth flexibilities for 151 days after the end of the PHE. The current PHE is set to expire on January 11, 2023 (there are indications it may be extended yet again). Therefore, at the earliest, the new telehealth rules addressed below will take effect on June 11, 2023. CMS implemented the following two requirements related to in-person visits for telehealth services provided after the end of the PHE and the 151-day window established under the CAA.

1. An in-person visit is required prior to providing telehealth services.

The beneficiary must receive an in-person service no later than six months prior to the first time the hospital clinical staff provides the telehealth services. Importantly, this requirement only applies to beneficiaries who are provided telehealth services for the first time after the 151-day window. If a beneficiary was seen for telehealth services during the PHE or the 151-day window, no six-month in-person service requirement applies. However, the hospital will still need to follow the rule below.

2. A yearly in-person visit is required.

There must be an in-person service without the use of telecommunications technology within 12 months of each mental health service furnished remotely by the hospital clinical staff. CMS will allow an exception to this requirement if the hospital clinical staff member and beneficiary agree that the risks and burdens of an in-person service outweigh the benefits of it. Exceptions to the yearly in-person visit requirement should be documented in the beneficiary’s medical record, which should include:

• The clinician’s professional judgement that the beneficiary is clinically stable; and/or
• an in-person visit has the risk of worsening the person’s condition, creating undue hardship on the beneficiary or their family, or would otherwise result in disengaging with care that has been effective in managing the beneficiary’s illness; and
• the beneficiary has a regular source of general medical care and has the ability to obtain any needed point-of-care testing, including vital sign monitoring and laboratory studies.

Provision of Audio Only Telecommunications for Behavioral Health Telehealth Services

Under the PHE blanket waiver flexibilities for certain services, CMS waived the requirements that an “interactive telecommunications system” included two-way audio/video capabilities. In the Final Rule, CMS expressed concern that as a result of limited access to broadband due to geographic/socioeconomic challenges, beneficiaries would have come to rely upon the use of audio-only communications technology in order to receive mental health services. Accordingly, the Final Rule allows audio-only communications where the physician or practitioner furnishing the telehealth service is able to use two-way audio/video communications, but the beneficiary is not capable (e.g., no broadband is available), or does not consent to the use of two-way audio/video communications.[4]

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