On April 14, 2020, CMS held another call in a series of “Office Hours” on COVID-19 payment questions. CMS Office Hours provides an opportunity for providers on the frontline to ask questions to agency officials regarding CMS temporary actions related to COVID-19. Pre-submitted questions are accepted at firstname.lastname@example.org. During its “Office Hours” on April 14, CMS fielded questions on a wide range of issues, with an emphasis on hospital billing for remote services provided by physical therapists, occupational therapists, and other non-physician clinical staff and on COVID-19-specific coding and billing issues, especially those related to the use of code “modifiers.” A transcript of the Office Hours session, with questions and answers grouped by subject, follows. If you have any questions, please contact Diane Millman (Diane.Millman@PowersLaw.com), Leela Baggett (Leela.Bagett@PowersLaw.com), or your regular Powers attorney.
Skilled Nursing Facilities
Question: If a patient is an observation at a hospital and needs to come to a SNF, will CMS waive the 3-midnight rule due to COVID-19? …
>> CMS: … This is one of the first things we were able to do as far as the waiver under our 1812F authority—we are able to waive the three-day qualifying stay requirement for skilled nursing facility level care. We realize patients may not be able to be in the hospital for those three days or they may be in there for fewer than three days in observation or may not be able to go to the hospital at all, which is a requirement for SNF level care. Under the authority, we can waive that three-day stay for hospital patients in observation.
>> Participant: I have a couple of questions with regard to SNFs. The first one is with CMS … to provide relief to SNFs for the MDS timeframe requirement, so does the MDS assessments but I had a lot asking what exactly does this mean? Does it mean during this emergency, they are not required and they are affected by it doesn’t mean they still have to do this for this timeframe …, but timely or what kind of … can you provide on that?
>>CMS: … We will have to take that back. We do have more information that we are working to get to clarify exactly how that waiver is operationalized so more information is going to be coming on that one.
>> Participant: I was wondering — I’ve had multiple SNFs ask me if they could put in isolation residents that … both have a positive confirmed case of COVID-19 … the manual states that the resident has to be in a room on their own, but they are wanting to know if an exception could be made for the emergency situation, and in addition, they are wanting to know if for residents they bring in … isolation for 14 days until they don’t show symptoms before they bring them into the other part of the SNF where the other residents are, and they want to know if they can code isolation for that on the MDS even though the resident may not have an active infection.
>>CMS: And so unfortunately, I think we are going to have to take that one back as well to get the specific information that you need. … I believe we are going to give follow-up information on subsequent office hour calls….
>> Participant: Okay. And I also had several SNFs ask me if they use the 1135 where they don’t have to have a three-day qualifying hospital stay, what sort of documentation [is] require[d]? Do they have to have something from the hospital that could not take them saying they have an influx of patients or what can they do to prove that this resident is affected by the COVID emergency and therefore, they can [use] the 1135?
>> CMS: So, my understanding is that’s a blanket waiver, and you do not have to take any particular action to further waive that, so that requirement is already waived at this point.
>> Participant: So, they would not be provided — required to provide any documentation for that resident?
>>CMS: … That’s correct. It’s a blanket waiver nationwide. So, it’s for all beneficiaries….
Telehealth Provided by Physical/Occupational Therapists and other Non-Physician Clinical Staff
>> CMS: … The next question is: Can CMS address questions about telehealth payments for physical/occupational speech therapy. We have heard concerns that outpatient departments have been unintentionally precluded from being able to bill for physical/occupational/speech therapy provided via telehealth due to the method of billing which does not have an option….
>> CMS: … We are aware of this question, and we understand the significance, particularly as healthcare providers across the country moved to telehealth modalities in order to address the circumstances of the public health emergency, and we are actively taking a look at all of the changes that we can make based on our usual authorities, but especially given the new authorities from the CARES Act, which was recently passed. So, we continue to look at those, and we are optimistic that changes can happen in the near future. But at present, that is an accurate assessment for the institutional billing—there is no mechanism for that, and we are taking a look at it and understand the issue, and we are optimistic changes can be made and instructions will be forthcoming.
>>Participant: … I know right now telehealth has not been expanded to PT and OT, and back on March 30th in that Interim Final Rule, CMS did add in CPT codes commonly used to cover telehealth services because we know physicians and nurse practitioners can bill for those services. The question I have is under normal physical therapy and occupational therapy provided in physicians’ office can you bill for those services incident to a service …? So, can a physical therapist or occupational therapist do telehealth right now and have that billed to a physician’s NPI on a claim form paid by Medicare, or is it still no because telehealth is still being done by a PT or OT. Does that make sense?
>> CMS: That certainly makes sense. Historically, the Medicare policy surrounding telehealth has been that the practitioner furnishing the service directly or indirectly providing the service that the billing for the telehealth service is specifically for that scenario given there is a list of practitioners who are allowed by law to provide those telehealth services. I will say we are actively taking a look at those questions and looking at authorities particularly under new statutory provisions that have passed, and I think it might be worth noting, as you did, that we added a new number of therapy services and so, I would say that we continue to look at the policies, and we anticipate issuing guidance in the near future.
>> Participant: So, is the answer then no in terms an incident-to billing for telehealth?
>> CMS: The answer is that under current policy and the way we have historically interpreted those services, the answer is no, and we are actively looking at the authorities that we have under the law….
>> Participant. . ., and the second question is I implore you to please provide some guidance about the hospital outpatient therapist, registered dietitians, the lactation services, all of these services can be performed via telemedicine. I am not talking about inpatients; I’m talking about hospital outpatient nonphysician practitioners, and I know you are hinting that you might be considering the therapy services, but I also implore you to look at the others, like registered dietitians, social workers, the list goes on and on. And I implore you to please provide some guidance specifically surrounding hospitals outpatient departments, because we have thousands of claims holding waiting to hear something from CMS, and we know that there is the interpretation of what was in the CARES Act and what is allowed under these waivers, but I can tell you as an institution holding thousands upon thousands of claims we — it would be really helpful if we could get some guidance.
>>CMS With respect to your second question, I know you said you are not really talking about telehealth and I just want to clarify before I turn it over to Ryan- when you talk about the registered dietitians and the like, are you talking about them personally furnishing a service in-person or doing it remotely where both the clinician and the patient are in a nonclinical setting?
>> Participant: What I am talking about is the therapists are in the hospital outpatient department and they are using audiovisual technology to see the patient off site. You allow that to be covered for the private practice, … but you are not allowing it, so there is no difference in that aspect, so I am talking about nonphysician practitioners who are physically located in the hospital outpatient departments and the patients are not inpatients nor are they on the campus anywhere. They are at their own house; that’s what I mean.
>>CMS: They are registered outpatients. Thank you for that clarification. I’m going to turn it over to Ryan who is our resident expert on all things remote services.
>>CMS: … I want to reiterate that when I say we are exploring authority, I don’t mean to suggest we are sort of contemplatively taking a look at it, but rather we are addressing issues as quickly as we can, understanding the importance of the issue, and I just want to make that really clear because you as well as others have certainly brought that to our attention, and we continue to appreciate hearing it, and we are actively working on it. I think part of the challenge is figuring out all the different sort of … circumstances under which the services are furnished for the sake of the beneficiaries and to make sure that we are getting all these scenarios so that we are not leaving holes in the payment policies that create a problem. So, we are trying to – as quickly as we can under the circumstances, so thank you very much, and we are optimistic that we will have some guidance soon….
>> CMS: … If there are any particular services that you think a facility, in particular a hospital, can do virtually, it would be helpful to hear what those particular services are. Some of the ones that we have heard already have to do with counseling type of services or certain therapy services that are done by someone who is not able to bill under the physician fee schedule but if there are other types of services– obviously most hospital therapeutic services do require an in person visit and interaction with the patient, but if there are other services you think would be helpful to keep in mind feel free to submit those.
Telehealth: Mode of Communication
>> CMS: … Another telehealth question submitted: Will Medicare pay for telehealth visits conducted by audio-only for phones or just paid for the previously unpaid telephone communication codes?
>> CMS: …We continue to look at what the flexibilities might be, and we certainly have heard a lot about circumstances where audio-only is available for patients and at present, based on changes in the Interim Final Rule that we released, they describe telephone evaluation visits, and those codes are now available for payment under the physician fee schedule both for physicians and other qualified practitioners. To conduct those sorts of evaluation and management or assessments over the telephone and, again, those are specific CPT codes for the rest of telehealth services audio and video must be used but, again, we are taking a look at those at those policies in the context of the request we have received, as well as the statutory authorities, and we expect to have more information forthcoming….
Rural Clinics and Other Rural Providers
>> Participant: … Just several questions on rural hospital issues … such as the rural health clinic 50 bed limitation and 100 bed limitation and some community hospital questions. Can you give us feedback on your process there and when you might be able to answer these rural hospital questions…?
>> CMS: Those are all questions that we are currently working on. I don’t have a particular timeline, but we are well aware of the frequency, which we are being asked … and the desire and need to implement something.
>> Participant: We are starting to see cases in our area now, just trying to make contingency plans and would appreciate any insight you can give us.…
>> Participant: … I do have one other thing as you are researching the use of the “DR” modifier and putting out clarifications…. I know one of the waivers was we can exceed the 25 bed limit, but I am not sure it’s at the point where we have more than 25 patients, does the “DR” go on every claim or would it just go on patient 26, 27, 28 and so on?
>>CMS: We will consider that. Thank you….
COVID-19 Coding and Use of Billing Modifiers
>> Participant: … I understand for the outpatient E&M codes 201-205 that we can use the 2021 guidelines for determining the level for these telehealth visits that would be dependent upon either time or medical decision-making, so my question is where do we find the guidelines for time? The American Medical Association CPT description … or CMS has their own list of times or where do we go for that?
>> CMS: … Times are available in the code descriptors themselves suggesting a typical amount of time … with a patient. There are also times available with each of the CPT codes in the files on the physician fee schedule website on CMS.gov. And those would be the relevant times for purposes of reporting the codes. That said, I think that question may highlight for us the need to have a particular frequently-asked-question on that, and we will take that back and try and be as clear as possible.
>> Participant: Because I know kind of the average times that are posted by CMS, especially for the established patients differ quite a bit from the CPT code description, so that is why I was asking, but you are saying we can go with the CPT code description.
>> CMS: … I think you can go with the CPT code descriptor, and we will reiterate that in a future communication….
>> Participant: … I just needed clarification on the “CS” modifier. Reading the MLN from April 7th and I didn’t see any clarity on the Frequently-Asked-Questions, so we are holding all of our claims and it looks like the “CS” modifier is particular to outpatients because it mentions Medicare Part B and also seems to say that it is to be applied to the E&M code. Is that true? So, an ER visit, office hours and E&M visit—that kind of thing, not anything else….
>> CMS: …The “CS” modifier, which are cost-sharing for certain services in accordance with the new statute, and as you described, it should be used when one of the evaluation and management services is billed. Those can be found in the CPT code book, as well as on the hospital …., some of the CPT codes are not recognized so, for example, for the clinic visit, it is G0643 and that would apply. So, to the extent that you are submitting a claim for one of those services and that service is not packaged into another service, cost-sharing would be waived by presence of the “CS” modifier.
>> Participant: Okay, because later on in the article, it was saying use the “CS” modifier on the applicable same line, so we say does that mean we have more lines to put it on, but the same claim, but we think the E&M whether it’s CPT or any kind of visit that’s kind of what you are aiming for. One and done.
>> CMS: I will turn it over to my colleague in the provider billing group with respect to whether it should be applied at the HCPCS level or the claims level. I’m not sure we have a response for that right at this moment. If not, we can certainly take that back….
>> CMS: … So, if it’s a claim it would be on the line level as the modifier level so basically at the level it looks like that’s where you should be putting that modifier. If that doesn’t answer your question, we can also look to adding an FAQ on that if there some clarity we can add so we will look to that as well….
>> Participant: … My question is on the “CS” modifier as well. In the FAQs just updated, it says to use — that the use of modifier “CR” and condition code “DR” are mandatory, so I guess the question is, can we put the “CS” and “CR” because that’s mandatory and on the hospital outpatient it would probably be a line item because several line items could be cost-sharing items, so I guess that’s the clarification needed. Do we also use the “CR”?
>> CMS: So, yes … put the “CS” on the line level. For the modifiers, I’m sorry it’s modifier and condition code and its related to an emergency situation to telehealth and you can jump in if I say this incorrectly, but it was specifically for telehealth because we did not need to have the “CR” or “DR,” but in every other situation we do. And that would be in addition to the “CS” where that’s applicable.
>> CMS: … In cases where the telehealth visit is associated with COVID testing, you would need both 95 and the “CS” modifier. So, the presence of the telehealth modifier does not necessarily change the cost-sharing.
>> Participant: On the UB-04 outpatient hospitals is where we need the clarification on the “DR”. You guys could put out something about that for outpatient hospitals and not telehealth.
>>CMS: Thank you, we will take a look at whether we could add that.
>> Participant: … When you are talking about all the stuff you are doing, I can tell you are winking at us that this will happen. The question is will it be retroactive to the date that they were added to the list? So, can therapist start doing stuff by telehealth and once it is approved, you are able to go back and bill for that?
>> CMS: … Where we have — I just point out at a high level, we have retroactive in many cases or at least clarified, and so I think that’s an indication we are willing and — I don’t know Ryan if you have anything.
>>CMS: I don’t, but it makes sense to me.
>> Participant: So, then the other question that came up about “CR” and “DR” is if the instruction seem to indicate that those go on every single COVID claim, the “DR” goes on a claim only when there is a waiver used such as SNF without a three-day and the 25 date expectation et cetera and not clear where the “CR” goes so that’s something that needs to be clarified on how those claims go out. …
>>CMS: …On the “CR” and “DR” for Medicare purposes, they are used when they are waived not …… for everything
>> Participant: … We are receiving reports that an increase in number of denials for e-visits because of the modifier when both the modifiers are on the claim and prompt that they are telling providers to not use the “GP” modifier and some telling providers not to use the “CR” modifiers, and CMS indicated on March 20th that the “CR” modifier is required for e-visits and rules indicated that “GP” modifier is required when e-visits are furnished, so would greatly appreciate it if CMS could clarify or have an updated Q&A document and more importantly, to all of the MACs, the appropriate modifier for the claim when billing e-visits and other communication-based technology services to prevent denials from occurring. And then my question is can the e-visit 061 or 063, can that code be used more or billed more than once in a given episode of care, such as during two or more different … date periods within the same episode not just in a common question and it has not been clear as to whether a provider could bill an e-visit more than once given that the therapy episode of care could be several months long. That is my question.
>> CMS: … On your second question, I think the frequency limitations for the e-visits apply to as listed in the code, so there would not necessarily be a restriction over a long episode of care, but we can certainly address that in an FAQ as well. On your first point, we certainly appreciate hearing when there is confusion and as you well know, there’s been a lot of changes really rapidly so that feedback is really important in terms of us making sure the guidance is clear, as well as the processing instructions are clear, so we appreciate hearing all of that, and we will work on that.
>>Participant: … I did want to clarify there’s been a lot of questions about the “CS” modifier. There’s a Q&A dated April 11th that basically says that any service that was done along with the E&M that led up to the COVID-19 testing that was related would need to be covered with no cost sharing. It goes on to say the CDC strongly encourages clinicians to test for other causes of respiratory illness. Therefore, if the individual’s attending provider determines other tests influence a blood test (et cetera) should be performed during a visit which … includes in-person visits and telehealth visits to determine the need for such individuals for COVID-19 diagnostic testing and the visit results in an order for or administration of the COVID-19 diagnostic testing, a plan or issuer must provide coverage for the related tests also. So, I am taking that to mean that the “CS” modifier could need to be put in other lab work, as well as chest x-rays and things like that that the doctor is using to screen for other conditions before determining to do the COVID testing. Is that how you would take it?
>> CMS: So, can you tell us a little bit more about the question. Is it about the underlying policy or the coding?
>> Participant: It is — page five and six and the question starts out as: “The FFCRA requires plans and issuers to cover items and services provided during a visit that ‘relate to the furnishing or administration’ of COVID-19 diagnostic testing or that relate ‘to the evaluation of such an individual for purposes of determining the need’ to for diagnostic testing. What type of items and services must be covered pursuant to this requirement?”
>> CMS: I think that is a reference to — interpreting the requirements are applicable to plans and when they pay for what. … I believe we are having some technical issues with that phone line, but we can take this question. I’ve recorded your contact information so we can be sure to follow up with you and really appreciate your question….
>> Participant: Are there any virtual services that can be billed on a UB? I’ve had some conflicting information. But I know telehealth can — can e-visits or virtual check-ins or any of those other things be billed?
>> CMS: They could be billed on the — under the billing and that would be a particular case as a general rule and others should jump in if I have this wrong. Most of the codes that describe those sorts of virtual services are professional services, and so for the most part, I think those would be not paid separately to the institutions themselves. But, again, we are actively taking a look at a lot of those issues and the shift has obviously moved toward moving that kind of technology, and we are actively engaged in looking at what our authorities are.
>> Participant: … I did want to get clarification on the modifier “CR.” Because there was — in the special edition 20011 article, it says that the telehealth does not need to have the modifier “CR,” but in the Medicare fee for service providers’ FAQ document, under the general billing guidelines, it says that the “CR” needs to go on all claims. So, I just wanted to make sure that as you mentioned earlier that because it is under different authority, that is why there appears to be different guidance.
>>CMS: That is correct. But we will look at both of those FAQs versus the article and make sure we are consistent between the two….
>> Participant: … I have a follow-up question to last week’s question regarding the Q2023 which is to be billed for by independent laboratories, and the question came up what about hospital-based patients and having the nursing staff and/or the physicians having to go in and obtain these specimens for these inpatients or observation patients and at the time, there was going to be a discussion, CMS would be looking at to actually covering to see whether or not the actual hospitals could be covering — could be billing for it really and my question is if you’ve given any more consideration to that because you pay for CPT 36415 … which is a blood draw, so I don’t understand why this would be any different than a blood draw that’s the first thing.
>> CMS: …With respect to the first question specimen collection, the code is G2023 that I think you are asking about, and you are correct it is not currently payable for hospital outpatient departments, and that is something we are still looking into. We have heard as you mentioned on the call last week as well as from others and are actively considering what we can do related to that code. I will say while Medicare does not give coding guidance, to the extent there are other codes in the meantime that you believe are appropriate, including if you don’t think there is another appropriate code that exist for specimen collection that hospitals do, there are also unlisted codes, but I do think we should have some guidance very soon on G2023.
>> Participant: …My question is … related to the modifier “CS” being appended to evaluation of managed services … If a patient is an inpatient … go for the test, are you saying that inpatient visit is not — we cannot append that to the inpatient visit or would it be not applicable in this sense?
>> CMS: So, it looks like the “CS” modifier does not apply to inpatients, and others can jump in here and help me if I don’t have that correct, but we will certainly try to make that very clear as well on the FAQs.
>> CMS: … The cost sharing waiver specifies the payment systems to which it applies. It did not mention inpatient, but there are other provisions specifically related to inpatient services, including a DRG add-on payment that does apply, so this is sort of tied to the specific way that the statute was written, but the “CS” modifier only applies for the hospital setting, it only applies to outpatient.
Provider Relief Fund
>> Participant: … My question today is about the Public Health and Social Services Fund. There are some Medicare providers—especially specific to the skilled nursing facility space—who do not bill Medicare directly. They have to send their bill through the skilled nursing facility because of CMS’s consolidated billing rule, so I am speaking specifically of rehab therapy companies and so these therapy companies did not receive any public health funds because of this I assume because of the CMS consolidated billing required for billing to go on in skilled nursing facility claim forms, so I wanted to inquire about that. Is CMS taking any steps to expand the Public Health Fund…
>> CMS: I wonder if the question is about the Provider Relief Fund—the $100 million for which $30 billion was provided…
>> Participant: Exactly. That is the one I’m talking about.
>> CMS: … That fund is one that is being administered not by the folks on this call and not at CMS, but we can get that question to the right place. I will venture just a little to answer it which is the basis for the claims that were made– the payments that were made under that fund was Medicare billings, and so obviously there is another $70 billion to distribute and the office handling the funds the Secretary’s Office, and I hear they are definitely looking at what to do and have in mind what to do with that other $70 billion and among those things are the entities that would not have received funds in the first tranche. … We can take your question and funnel them into the right place ….
>>Participant: We are having trouble getting people into SNFs, and I know you are working hard … on that so patients coming in for observation after a fall or … that need SNF care that qualify for it, but we can’t get a SNF to accept them until they get screened for COVID. That is taking two or three days. Can hospitals admit these people as inpatients while they continue to provide the care for the patient waiting for a SNF to accept the patient?
>> CMS: … I know as you are well aware there are guidelines for hospital admission as inpatient and those have not changed during the public health emergency, so to the extent that hospital care is required there are two different pathways to that—there is inpatient and outpatient, and I would not advise you to admit a patient as an inpatient if they don’t need to be admitted as an inpatient and the rule does still apply. I think you’ve heard other colleagues talking about the three-days stay inpatient requirement and the waiver associated with that. I don’t know if they can address the aspect that you are talking about, which is finding a SNF to accept a patient, so I will turn it over to my colleague….
Academic Medical Centers/ Billing for Services Performed by Residents
>> Participant: … I want to raise a question regarding the residents and some services that have been provided by residents in the emergency room departments in the hospital setting. Currently, we do not bill billable services unless they are cosigned and validated by attending physicians, but as you know, with the surge in patients, we don’t necessarily have a chance to have an attending physician reviewing but the residence — are there plans to allow under these waivers for the facility site to bill for the resident services if an attendee was not present at the key portion of the visit, and I know there are some exceptions made that those portions could go to telehealth, but if that is not possible, is CMS thinking of allowing some exceptions for the hospitals to bill for those services?
CMS: We certainly appreciate the question and understand the needs of the provider’s given all of the pressures on the physicians and other practitioners. I think that is something we can take a look at and see. As you note, we did issue some changes that allow for more supervision through virtual means and but — I understand that your questions are broader than that, and we can take that into consideration as well.
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