This browser is not actively supported anymore. For the best passle experience, we strongly recommend you upgrade your browser.
viewpoints
Welcome to Reed Smith's viewpoints — timely commentary from our lawyers on topics relevant to your business and wider industry. Browse to see the latest news and subscribe to receive updates on topics that matter to you, directly to your mailbox.
| 3 minutes read

Radiology-related provisions of the Medicare Physician Fee Schedule 2022 proposed rule

Yesterday, July 13, the Centers for Medicare and Medicaid Services (CMS) released the calendar year 2022 Medicare Physician Fee Schedule (MPFS) proposed rule. In record time, the American College of Radiology (ACR) released a preliminary summary of the provisions within the MPFS proposed rule that may impact the practices of, and payments to, its member diagnostic radiologists and radiation oncologists. This included:

Appropriate Use Criteria program: There was a lot of industry anticipation around this area. CMS has announced its decision on whether and when it would fully implement the appropriate use criteria (AUC) program for advanced diagnostic imaging services mandated by the Patient Access to Medicare Act of 2014. CMS advised that it is requesting feedback on whether it is more appropriate to deny or return claims that fail AUC claims processing edits. CMS is also proposing to hold off on the processing systems for AUC claims edits and on the payment penalty phase of the program until the latter of January 1, 2023, or the January 1 of the year after the year in which the public health emergency (PHE) for COVID-19 ends.

Impact on Medicare payments: As for the impact of the proposed rule on Medicare payments, ACR notes that CMS estimates a CY 2022 conversion factor of $33.5848 compared to the 2021 conversion factor of $34.8931. CMS estimates an overall impact of the MPFS proposed changes to radiology to be a 2 percent decrease, while interventional radiology would see an aggregate decrease of 9 percent, nuclear medicine would see a 2 percent decrease, and radiation oncology and radiation therapy centers would see a 5 percent decrease if the provisions within the proposed rule are finalized. 

What is more concerning is that, because of the application of budget neutrality to increases in payment for E&M services, the payment reductions could be even greater for 2022 if Congress does not intervene. Congress, of course, did intervene in the Consolidated Appropriations Act, 2021 (CAA) which rolled back the payment cuts to radiologists set to go into effect in January 2021 from 10 percent to approximately 4 percent.

Another feature of the CAA was amendments to remove the requirement that payment for physician assistant (PA) services be made only to the employer of a PA. This legislation would be effective January 1, 2022. CMS has proposed that PAs be authorized to bill the Medicare program and be paid directly for their services in the same manner that exists for nurse practitioners and clinical nurse specialists.  

Definition of “direct supervision”: During the public health emergency, CMS changed the "direct supervision" requirements for MRI and CT scans with contrast media administered. The changes allowed the supervising physician or non-physician practitioner to be immediately available through virtual presence using real-time audio/video technology, instead of requiring the supervisor's physical presence. 

CMS is seeking comment on whether this flexibility should potentially be made permanent, meaning that the agency could permanently revise the definition of “direct supervision” at § 410.32(b)(3)(ii) to include the supervising physician or practitioner's immediate availability through virtual presence via real-time, interactive audio/video communications technology. Alternatively, CMS is asking for comments on whether it should continue with the current policy in place for a short additional time to facilitate a gradual sunset of the policy.

Telehealth payment policies: CMS also addressed the question of whether it should maintain certain telehealth payment policies adopted during the PHE. For background, CMS had created a third temporary category of criteria (Category 3) for services added to the Medicare telehealth list during the COVID-19 PHE that would be allowed to remain on the list through the calendar year in which the PHE ended. In response to stakeholder concerns, CMS is proposing to retain all Medicare services for which payments were made as Category 3 services until the end of CY 2023. This would allow more time to collect information on utilization of these services. 

ACR also notes that CMS is soliciting comments on whether any of the services that were added to the Medicare telehealth list solely for the duration of the PHE for COVID-19 should now be added to the Medicare telehealth list on a Category 3 basis.

Qualifications of IDTF technologists: CMS has taken steps in the proposed rule to modernize its program integrity requirements with respect to the qualifications of technologists performing tests using certain emerging technologies in independent diagnostic testing facility (IDTF) settings. Currently, § 410.33(g) contains various certification standards that IDTFs must meet. Section 410.33(c) requires that all non-physician personnel that the IDTF uses to perform diagnostic tests must demonstrate the basic qualifications to perform these tests as evidenced by state licensure or state certification. In the absence of a state licensing board, the technologist must be certified by an appropriate national credentialing body. For tests that do not require direct patient interaction, CMS proposes that that personnel performing these indirect tests should meet whatever state requirements exist for those services. However, for those states without licensure for this non-physician category, the new rule, if adopted, would not include any reference to national credentialing bodies.

Additionally, the ACR's excellent preliminary summary reports extensively on the CY 2022 MPFS proposal relating to the Medicare Quality Payment Program.

ACR’s preliminary summary of the proposed rule is linked below.

The Consolidated Appropriations Act, 2021 (P.L.116-260) included a 3.75 percent adjustment to the 2021 conversion factor which rolled back the payment cuts to radiologists from 10 percent to approximately 4 percent. If Congress does not intervene, the percent decreases mentioned above could be greater for CY 2022 for many physicians including Interventional Radiology and Radiation Oncology

Tags

health care & life sciences, medicare, physician fee schedule

Related Insights