Comment Letter on CMS Interim Final Rule on Policy and Regulatory Revisions during COVID-19 Public Health Emergency (PHE)

June 1, 2020

Submitted via the Federal eRulemaking Portal:

Seema Verma
Centers for Medicare & Medicaid Services
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 445-G
200 Independence Avenue, SW
Washington, D.C. 20201

Re: Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency [CMS-1744-IFC]

Dear Administrator Verma:

America’s Physician Groups (APG) appreciates the opportunity to comment on the Interim Final Rule on Policy and Regulatory Revisions during the COVID-19 Public Health Emergency (PHE). Our members strongly support your efforts to address the many issues arising within physician groups during this public health emergency to provide relief for providers.

About America’s Physician Groups
APG is a national professional association representing over 300 physician groups that employ or contract with approximately 195,000 physicians that provide care to nearly 45 million patients. Our tagline, “Taking Responsibility for America’s Health,” represents our members’ vision to move from the antiquated fee-for-service (FFS) reimbursement system to a value-based system where physician groups are accountable for the cost and quality of care. Our preferred model of capitated, delegated, and coordinated care eliminates incentives for waste associated with FFS reimbursement. APG member organizations are working diligently to rise to the challenge presented by the COVID-19 pandemic. We are focused on the transition of most patient visits to telehealth as a best practice in slowing the spread of the virus and keeping patients safe.

Summary of APG’s Comments

• Expand the types of providers eligible for reimbursement for telehealth so restrictions on distant site providers are lifted

• Reimburse physicians for audio-only telehealth services

• Lift restrictions on e-health and virtual check-ins requiring providers to track possible follow-up visits and reconcile any follow-up interaction

• Provide greater clarity on the types of services that may be available to patients on
homebound status during the public health emergency

• Provide more incentives to keep healthcare organizations enrolled in alternative payment models (APM)

• Transition all quality measures to pay-for-reporting for 2020 and 2021

• Continue MSSP extreme and uncontrollable circumstance policy for the duration of 2020

• Lift the requirement that providers demonstrate they have been adversely affected by
the ongoing public health emergency in order to qualify for reweighting quality, cost, and improvement activities performance categories


Payment for Medicare Telehealth Services Under Section 1834(m) of the Act: 
CMS added additional services to its list of those that can be furnished via telehealth and billed to Medicare, retroactive to March 1, 2020. The new services included over 80 new codes (which we support), including emergency departments, home visits, and therapy services except for those provided by physical therapists, occupational therapists, or speech-language pathologists. CMS explains that it has added these services on a “Category 2 basis” because there is a patient population that, because of COVID-19 exposure risk, would not otherwise have access to clinically appropriate treatment. For additional E/M codes, CMS instructed providers to select the E/M code that best describes the nature of the care provided, regardless of the physical location or status of patient, for any additional E/M codes.

CMS also instructed physicians to report the point of service (POS) code that they would have reported had the service been furnished in person, allowing payment to be made at the in-office rate. Physicians who continue to submit telehealth claims with POS code 02 were ruled to be paid at the facility professional services rate and physicians were instructed to use the CPT telehealth modifier (95) on claim lines describing services furnished via telehealth. We appreciate the change in payment to allow parity between telehealth and in person visits and request that it continues post Public Health Emergency.

The expansion of telehealth payment options to include services from a multitude of healthcare providers by CMS is a welcome change that will allow for the expansion of care services, allowing for the treatment of larger numbers of patients. We would encourage the agency to continue to expand the kinds of providers allowed reimbursement for telehealth so restrictions on distant site providers may be lifted, allowing these providers to deliver care during the current public health emergency.

Telehealth Modalities and Cost-sharing:
CMS added an exception clarifying that smartphones with audio and video capability are acceptable for telehealth services during the public health emergency. It is important that CMS acknowledge the need for increased flexibility for audio-only telehealth services, particularly as it pertains to eligibility for risk adjusted payment for telehealth services conducted solely through audio only technology.

Telehealth services hold importance for patients living in rural areas of the country for whom travel has always been difficult, even before the adoption of widespread social distancing. These areas usually do not have widespread access to broadband internet service making compliance with the video requirement for a face-to-face encounter an impossible lift for these patients that need these services the most. Many senior patients do not have access to the expensive technology required to allow providers to qualify for risk adjustment coding under the current guidance. Many providers’ patients have expressed difficulty in navigating the video technology included on video equipped smartphones and similar devices. If a physician determines that a video-enabled visit is unnecessary or not feasible and/or determines that they are able to meet best practice guidelines for the service through an audio interaction, allowing reimbursement for
audio-only telehealth benefits both patients and physicians alike. We appreciate the E/M codes that were added for audio-only in Medicare FFS and would request that you  add audio only to risk adjustment coats for Medicare Advantage.

Communication Technology-Based Services (CTBS):
CMS expanded the availability of codes G2010 (remote evaluation) and G2012 (virtual check-in) so that they may be used for services furnished to new and established patients as long as consent is annually documented, even by auxiliary staff under general supervision. The agency clarified that consent is not necessary at the same time a service is furnished. The codes were made available for services furnished by licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists, and speech language pathology. CMS also expanded availability of online digital evaluation and management codes (99421, 99422, 99423) and NPP online assessment and management codes (G2061, G2062, G2063), subject to enforcement discretion on the requirement that the codes be used only for services furnished to established patients.

Removing the preexisting relationship documentation requirement from billing for E-Visits and Virtual Check-ins is a step in the right direction; however, restrictions requiring providers to track a possible follow up visit as soon as possible and reconcile any follow-up interactions adds an additional administrative burden on physicians during a time where their attention is already spread thin and would be best spent serving patients during a public health emergency. Continuing with these requirements will prevent the full utilization of these codes. To ensure that CMS expansion of the availability of these codes is fully implemented as intended, we recommend that CMS lift the remaining restrictions so that physicians may utilize these services without any additional barriers.

Direct Supervision by Interactive Telecommunications Technology:
The definition of direct supervision was revised to allow for direct supervision using real-time interactive audio and video technology, which can include instances where a physician enters into contractual arrangement for auxiliary personnel to leverage additional staff/technology to use staff under leased employment. Similar changes were made with the supervision of diagnostic services furnished directly or under arrangement in hospital or outpatient department, and pulmonary, cardiac, and intensive cardiac rehabilitation services.

These changes by CMS are a welcome revision that will allow for physicians to extend care to as many patients as possible wherever they may reside during the public health emergency. We do not see the need for any additional guardrails for this policy, nor do we anticipate any risks for beneficiaries because of the agency’s revisions. We do however reiterate to CMS the importance of allowing physicians the option to engage in telemedicine using audio-only communication and receive reimbursement in parity for in-person visits for this method of care. Physicians should be trusted to gauge what works best for a patient’s needs and conditions, as well as the telecommunications technology that patients, seniors especially, have access to and are able to use.

Clarification of Homebound Status under the Medicare Home Health Benefit:
CMS determined that patients are considered homebound if it is medically contraindicated for them to leave home, including for reasons related to COVID-19. This applies before and after the COVID-19 emergency. Many Medicare beneficiaries could be considered confined to the home, but physician assessment and certification is required to make this determination.

CMS’ determination that patients’ homebound status should include reasons related to COVID19 is an appropriate regulatory change and we encourage the agency to provide greater clarity on the types of services that may be available to patients on homebound status during the public health emergency. As care continues to be concentrated on COVID-19 patients, some providers may be stretched thin when organizing in-home administration for patients.

The Use of Telecommunications Technology Under the Medicare Home Health Benefit During the PHE for the COVID-19 Pandemic:
CMS allowed home health agencies to use telecommunication systems in conjunction with provision of in-person visits if the use of this technology is included on the patient’s plan of care. CMS notes that use of technology may result in changes to the frequency or types of visits outlined on plan of care in response to COVID-19 and gave the example that a doctor may review a plan of care and, in light of COVID-19, revise the plan to provide for certain visits to be provided via telehealth.

We applaud CMS’ move to allow for the use of telehealth services to reach patients wherever they are located during the public health emergency and ensuring that reimbursement for physicians for telehealth is included in the payment for the 30-day episode.

Innovation Center Models:
We would ask that CMS provide more incentives to keep healthcare organizations enrolled in alternative payment models (APM). It is important that these models such as the Medicare Shared Savings Program (MSSP), Next Generation ACOs, Primary Care Models, and Bundled Payments remain viable in both the short and long term, and CMS recognizes and preserves the role they play in moving healthcare from volume to value. The ongoing public health emergency has made clear for physicians and healthcare entities the need to account for quality of care and maintain the positive ground we have made in transforming our system of care.

Telephone Evaluation and Management (E/M) Services:
CMS will pay for CPT codes 98966-98968 and CPT codes 99441-99443 (telephone E&M services), with work RVUs as recommended by the American Medical Association’s HCPAC during the public health emergency. The services were expanded to be available for both established and new patients.

We fully support CMS’ decision recognizing that there are many circumstances where prolonged, audio-only communication between the physicians and patients could be clinically appropriate and that payment for these telehealth services are appropriate and must be recognized; however, we would request that you add audio only for risk adjustment purposes in Medicare Advantage. Providers have had to adapt to the reality of the COVID-19 pandemic by transitioning up to 70 percent of care to telehealth – these services are now critical for providers and patients alike.

Change to Medicare Shared Savings Program Extreme and Uncontrollable Circumstances Policy:
The interim final rule extended 2019 MIPS data submission and the Shared Savings Program data submission deadlines by 30 days. The MIPS automatic extreme and uncontrollable circumstances policy was deemed to apply for MIPS eligible clinicians that do not participate in APMs if MIPS data is not submitted by the extended timeline. If no data is submitted, those MIPS eligible clinicians will have all performance categories reweighted to zero percent, resulting in a score equal to the performance threshold and a neutral MIPS payment adjustment. If a MIPS eligible clinician submits data on two or more MIPS performance categories, the clinician will be scored and receive a 2021 MIPS payment adjustment based on the final score. MIPS eligible clinicians who are subject to the APM scoring standard were ruled to continue to be scored under the existing APM scoring standard. The amount of an ACO’s shared losses were reduced for performance year 2020 and subsequent years by multiplying the shared losses by the percentage of the total months in the performance year affected by an extreme and uncontrollable circumstance and the percentage of the ACO’s assigned beneficiaries.

While we are supportive of the changes offered by CMS to the extreme and uncontrollable circumstances policy, we recommend that the agency make further revisions that would make all quality measures pay-for-reporting over the next two years. Due to the current pandemic and the potential for its effects to reverberate past 2020, making both this year and 2021 pay for reporting years would account for the circumstances ACOs currently find themselves under. Stars, HEDIS, and utilization measures will all assuredly suffer due to the pandemic and the inevitable drop must be accounted for.

We appreciate that CMS has implemented the MSSP extreme and uncontrollable circumstances for the covid-19 crisis by decreasing the amount of losses (no change in saving rate) based upon the percent of beneficiaries within the PHE area in the number of months that the PHE was present. However, participants continue to be concerned regarding the length of time of the PHE and if the PHE will continue to extend nationally. This degree of uncertainty is weighing heavily on the participants and impacting their decision to remain in the program. We request that CMS implement the MSSP extreme and uncontrollable circumstance policy will continue for the duration of 2020.

Implementing extreme and uncontrollable circumstances policies across all Innovation Center models will allow model participants to uphold the status quo. The Innovation Center models (e.g. Next Generation ACO (NGACO), BPCI-A, CPC+) do not have extreme and uncontrollable circumstances in place. CMS should create extreme and uncontrollable circumstances policies for these models comparable to MSSP and CJR where APM entities’ potential for losses are mitigated during the PHE and COVID-19 related expenses are removed from the model. For bundled payment programs, CMS should examine additional approaches to account for higher acuity patients being prioritized as nonessential services resume. These episodes are likely to be costlier and will unfairly penalize those in bundled payments during the initial reopening phases as the current risk adjustment and peer adjustment approaches will not account for this shift. Additionally, CMS should extend NGACO contracts, similar to the optional extension offered for MSSP ACOs in the IFC.

Merit-based Incentive Payment System Updates:
CMS designated a new improvement activity, clinician participation in COVID-19 clinical trials utilizing drug or biological product to treat patients with COVID-19, with findings reported through opens source clinical data repository or clinical data registry. CMS also extended the deadline to apply for reweighting quality, cost, and improvement activities performance categories. All applications must demonstrate providers have been adversely affected by the public health emergency.

We support the creation of this new improvement activity and the extension of the deadline for reweighting performance categories. We would however ask that the agency reconsider the requirement that providers demonstrate that they have been adversely affected by the ongoing public health emergency. The COVID-19 pandemic has had an immeasurable effect on all healthcare providers at all levels from revenue to the distribution of care with some APG member organizations reporting that up to 70 percent of their care has shifted to telehealth since the beginning of the pandemic. CMS should accept all applications under the assumption that all providers have been adversely affected by the public health emergency and without a means test to ensure that relief is distributed to all providers that require it.

Thank you for your attention to the above comments. Again, we reiterate our robust support for the extensive changes offered by CMS throughout the course of this public health emergency. It is important that CMS continues to work with stakeholders at this time. Please feel free to contact Valinda Rutledge, Senior Vice President, Federal Affairs, ( if you have any questions or if America’s Physician Groups can provide any assistance as you consider these issues.



Donald H. Crane
President and CEO
America’s Physician Groups

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