On November 2, 2022, the Centers for Medicare & Medicaid Services (CMS) filed its Medicare Physician Fee Schedule (PFS) final rule (Final Rule) for calendar year (CY) 2023. CMS finalized several noteworthy updates specific to behavioral health, generally adopting the proposals it made earlier this year.
The changes aim to expand access to behavioral health services, coordinate care between primary and specialty care providers, and support other goals outlined in the 2022 CMS Behavioral Health Strategy. For example, for the first time, CMS will allow physicians to bill behavioral services performed by auxiliary personnel (e.g., therapists) under general supervision, meaning the physician does not have to be physically present in the office with the treating clinician. CMS is also expanding Medicare reimbursement for clinical psychologists and licensed clinical social workers who work as part of a primary care team, and is making several updates to pricing and payment policies affecting opioid treatment programs (OTPs), among other changes. These efforts are, in part, an acknowledgment by CMS that the COVID-19 public health emergency (PHE) has contributed to an increase in the demand for behavioral health services and has exacerbated barriers to beneficiaries’ access to such services.
The regulatory changes outlined in the Final Rule take effect on or after January 1, 2023. Below is a summary of the key changes impacting Medicare coverage of behavioral health services.
Incident-To Billing for Behavioral Health Services
Citing increased needs for behavioral health services and workforce shortages, the Final Rule eases physician and non-physician practitioner (NPP) supervision requirements for behavioral health services. Currently, behavioral health services billed “incident to” a physician’s or NPP’s services require direct supervision by the physician or NPP, which means that the physician or NPP must be present in the office suite (but not necessarily in the room) and immediately available to furnish assistance and direction throughout the performance of the procedure. Effective in 2023, CMS has created an exception to the direct supervision requirement under the “incident to” regulation, now allowing auxiliary personnel, such as licensed professional counselors and licensed marriage and family therapists, to provide behavioral health services under the general supervision of a physician or NPP.
CMS chose not to define “behavioral health services” by HCPCS codes for this direct supervision exception, explaining that the agency believes that individual practitioners are in the best position to determine whether a particular treatment or diagnostic service is a behavioral health service. However, CMS states that it generally understands a behavioral health service to be any service for the diagnosis, evaluation, or treatment of a mental health disorder, including a substance use disorder (SUD). CMS provides examples, stating that behavioral health services could include, but are not limited to, psychotherapy; screening, brief intervention, and referral to treatment services; and psychiatric diagnostic evaluations.
CMS indicates that any clinician who meets the definition of “auxiliary personnel” may serve as auxiliary personnel under the exception. “Auxiliary personnel” is defined as any individual who meets the following criteria:
- Is acting under the supervision of a physician (or another practitioner), regardless of whether the individual is an employee, leased employee, or independent contractor of the physician (or another practitioner) or of the same entity that employs or contracts with the physician (or another practitioner).
- Has not been excluded from Medicare, Medicaid and all other federally funded healthcare programs by the Office of Inspector General or had their Medicare enrollment revoked.
- Meets any applicable requirements to provide incident-to services, including licensure requirements, imposed by the state in which the services are being furnished.
CMS declined requests from commenters to create a mechanism for licensed psychologists to bill for services furnished by advanced psychology trainees under their supervision. It also declined requests to include behavioral health professionals who are in the process of seeking full licensure (e.g., associate marriage and family therapists, state-licensed associate counselors) as auxiliary personnel.
These changes to supervision requirements received broad support from industry groups as having the potential to help expand access and coordination of mental health services.
Behavioral Health Integration
In the Final Rule, CMS finalizes policies to pay for clinical psychologists (CPs) and licensed clinical social workers (LCSW) who are furnishing integrated behavioral healthcare as part of a primary care team. The Final Rule creates a new Behavioral Health Integration (BHI) HCPCS code, G0323, which will allow CPs and LCSWs to bill for monthly care integration when the mental health services they furnish serve as the focal point of care integration. To bill G0323, a CP or LCSW must spend at least 20 minutes per calendar month providing services and meet all of the following required elements:
- Initial assessment or follow-up monitoring, including the use of applicable validated rating scales.
- Behavioral healthcare planning in relation to behavioral/psychiatric health problems, including revision for patients who are not progressing or whose status changes.
- Facilitating and coordinating treatment such as psychotherapy, coordination with and/or referral to physicians and practitioners whom Medicare authorizes to prescribe medications and furnish evaluation and management (E/M) services, counseling and/or psychiatric consultation.
- Continuity of care with a designated member of the care team.
The Final Rule adds HCPCS code G0323 to the list of designated care management services for which general supervision is allowed. CPs are authorized, based on their statutory benefit category, to furnish and bill for services provided by clinical staff incident to their professional services when all incident-to requirements are met. However, as CMS highlighted in the Final Rule, LCSWs are only authorized to bill Medicare for services they furnish directly and personally.
All BHI services, including G0323, require an initiating visit for a new patient or a beneficiary not seen within a year of commencement of BHI services to establish the beneficiary’s relationship with the billing practitioner, ensure that the billing practitioner assesses the beneficiary before initiating care management processes, and provide an opportunity to obtain beneficiary consent. Recognizing that existing initiating visit codes are not entirely within the scope of practice of a CP, CMS is finalizing CPT 90791 (psychiatric diagnostic evaluation) to serve as the initiating visit for G3023. CPs and LCSWs can bill this code.
Of note, integrated health models and care coordination are themes common to several goals outlined in the CMS Behavioral Health Strategy, which the agency launched earlier in 2022. These themes have also been highlighted by the Center for Medicare and Medicaid Innovation (Innovation Center), which recently published an update to its 2021 strategic report, the Innovation Strategy Refresh. In these documents, the Innovation Center identifies behavioral health as an area it is exploring as to whether integrated care models may improve outcomes. It also indicates that the Innovation Center is focusing on data infrastructure and sharing, patient-focused quality measurement, benefit enhancements and payment flexibilities to support integrated models.
Opioid Treatment Programs
The Final Rule also includes several modifications related to Medicare’s coverage of opioid use disorder (OUD) treatment services furnished by OTPs.
First, the Final Rule revises the methodology for pricing the drug component of the methadone weekly bundle and the add-on code for take-home supplies of methadone. For the calendar year 2023 and subsequent years, CMS will base the payment amount for the drug component of HCPCS codes G2067 and G2078 on the payment amount for methadone in CY 2021, and the agency intends to update this amount annually to account for inflation. In addition, the TRICARE rate will no longer be an alternative pricing methodology for methadone.
This adopted payment methodology is an exception from the current policy, under which payment for the drug component or episodes of care for oral medications is ordinarily 100% of average sales prices (ASP) where ASP data are available. CMS previously created a temporary limited exception, freezing the payment amount for methadone furnished during an episode of care in CY 2022 because only limited ASP data for oral methadone has been reported in recent years (reporting is voluntary), providing an unreliable basis for pricing methadone codes. The permanent revision to the pricing methodology established in the Final Rule is intended to stabilize the price of methadone for future years.
Although the change received some praise for helping to avoid decreases in reimbursement, some commenters expressed skepticism about whether the new pricing methodology will be adequate to keep pace with the increasing cost of providing OUD services.
Rate for Individual Therapy
The Final Rule also modifies the non-drug component of the bundled payments for episodes of care to increase the payment rate for individual therapy. As finalized, the rate for individual therapy in the bundle for 2023 will be based on a 45-minute therapy session code rather than a 30-minute therapy session code. Notably, CMS clarifies that the change is not intended to require the number of minutes spent in an individual therapy session for a service to qualify as an OUD treatment service. An OTP may bill for an episode of care even if the only OUD treatment service furnished to the beneficiary during the episode is an individual therapy session lasting less than 45 minutes. The change will increase payments for treatment for OUD in the OTP setting in recognition of the severity of the needs of the OUD patient population and the time spent providing individual therapy by an OTP.
CMS also clarifies that, for the OTP benefit, counseling services and individual and group therapy for OUD treatment may be provided by any professional authorized by state law and scope of practice to furnish this type of therapy or counseling.
Flexibility for OTPs to Use Telecommunication for Initiation of Treatment with Buprenorphine
The Final Rule modifies the OTP intake add-on code to allow the use of the add-on code when the initiation of treatment with buprenorphine is furnished via two-way audio-video communications technology, to the extent that the use of audio-video telecommunications technology to initiate treatment with buprenorphine is authorized by the Drug Enforcement Administration (DEA) and the Substance Abuse and Mental Health Services Administration (SAMHSA) at the time the service is furnished. SAMHSA regulations generally require a complete physical evaluation before a patient begins treatment at an OTP. However, during the PHE, DEA and SAMHSA are allowing OTPs to initiate treatment with buprenorphine via audio-video and audio-only communication without first conducting an in-person evaluation.
The exemption applies exclusively to OTP patients treated with buprenorphine; it does not apply to new patients treated with methadone. The exemption will terminate with the end of the PHE unless the DEA issues regulations to make the flexibility permanent.
In addition, the Final Rule permits using audio-only communication technology to initiate treatment with buprenorphine in cases where audio-video technology is not available to the beneficiary. Consistent with prior guidance, CMS interprets the requirement that audio-video technology is “not available to the beneficiary” to include circumstances in which the beneficiary is not capable of, or has not consented to, the use of devices that permit a two-way, audio-video interaction.
Relatedly, in response to feedback from commenters, CMS revised its regulations to allow periodic assessments to be furnished using audio-only communication technology – when video is not available – for the duration of CY 2023, to the extent authorized by SAMSHA and DEA at the time the service is furnished. CMS did not make the modification permanent but indicated it would continue to consider this issue.
Mobile OTP Units
Finally, in response to recently-updated DEA regulations that permit OTPs to add a “mobile component” to their existing registration, CMS clarified in the Final Rule that OTPs may bill Medicare for medically reasonable and necessary services furnished via mobile units in accordance with SAMHSA and DEA guidance. In addition, CMS clarified that, for reimbursement purposes, all services furnished via the mobile unit will be treated as if the services were furnished at the physical location of the OTP. CMS expressed its belief that allowing OTPs to bill Medicare for services furnished through mobile units is an opportunity to expand access to medications for OUD treatment by extending the reach of OTPs, particularly in remote or underserved areas.
Other Behavioral Health Changes
In addition to the changes outlined above, the CY 2023 PFS includes the following updates:
Mental Health Visits Furnished via Telehealth
The Final Rule implements provisions of the Consolidated Appropriations Act, 2022 that extend certain Medicare telehealth flexibilities adopted during the PHE for 151 days after the end of the PHE (i.e., flexibilities end 152 days after the end of the PHE). For example, the Final Rule delays the in-person visit requirements for mental health services for this period. CMS clarified that beneficiaries that began receiving mental health services via telehealth during the PHE or during the 151-days after the PHE will not be required to have an in-person visit within six months (typically, an in-person visit is required within six months before the first mental health services that are furnished via telehealth); instead, these beneficiaries will be considered to be established patients and will therefore be required to have at least one in-person visit every 12 months. CMS also finalized, with some modifications, its proposals regarding the use of telehealth modifiers and indicated that the agency will issue program instructions or other subregulatory guidance to assist with the post-PHE transition period.
Emotional/Behavior Assessment Services and Psychological or Neuropsychological Testing and Evaluation Services
The Final Rule temporarily adds several emotional/behavior assessment services and psychological or neuropsychological testing and evaluation services (CPTs 97151 – 97158, 0362T, and 0373T) to the Medicare Telehealth Services List (through the end of 2023).
The Final Rule changes the procedure status for family psychotherapy codes (CPT codes 90847 and 90848) to active. These CPT codes are payable under Medicare but are currently assigned a “restricted” procedure status. Changing the procedure status of these codes to “active” is intended to make the codes more accessible and to ensure that appropriate care is furnished to Medicare beneficiaries. There is no change to the coverage determination policy for these codes.
Alcohol Misuse and Depression Screenings
The Final Rule modifies the descriptors for HCPCS codes G0442 and G0444, each of which currently requires a minimum of 15 minutes of services. As revised, the descriptors read “Annual alcohol misuse screening, 5 to 15 minutes” and “Annual depression screening, 5 to 15 minutes.” The change is intended to allow practitioners to furnish the services more efficiently.
CMS also sought comment on, but did not make changes to, several additional issues affecting behavioral health services, including outpatient mental health treatment furnished by intensive outpatient programs. CMS indicated that it received robust feedback on intensive outpatient treatment and will evaluate the feedback for future rulemaking. In addition, CMS intends to address payment for new codes that describe caregiver behavioral management training in its CY 2024 rulemaking.
Please contact the authors if you have any questions about the changes related to the behavioral health sector in the Medicare Physician Fee Schedule for CY 2023.
Series: Changes to Medicare Physician Fee Schedule for CY 2023
On November 2, 2022, the Centers for Medicare & Medicaid Services filed a final rule implementing changes to the Medicare Physician Fee Schedule for CY 2023 (Final Rule). Within this Final Rule are significant changes for various healthcare industry sectors. The healthcare attorneys at Bass, Berry & Sims have reviewed the Final Rule and have provided an in-depth analysis broken down by topic. Additional installments in this series focus on updates related to: