Hot Off The Press: The 2024 Proposed Rule

Say what you will about the Center for Medicare and Medicaid Services (CMS), they’re always looking out for providers’ wellbeing. Just as summer temperatures roil to record highs, they drop a nearly 2,000-page proposed rule to keep everyone chained to their desks as they try and parse the latest regulatory changes.

Fortunately, we’re here to save you from that slog so you can get back to binging your favorite shows to beat the heat. We’ve gone through the CY 2024 Medicare Physician Fee Schedule (PFS) Proposed Rule and pulled out everything rehab therapists need to know for next year. So kick up your feet, make sure your A/C is turned up, and read through the latest proposed changes handed down from CMS.   

CMS is considering moving to general supervision guidelines.

Maybe the biggest headline from this year’s proposed rule is that CMS is at least thinking about changing its direct supervision guidelines to shift to general supervision for rehab therapists working in private practice settings. We say “thinking,” because CMS stated on page 269 of this year’s proposed rule that “We are considering whether to revise the current direct supervision policy for PTPPs and OTPPs of their PTAs and OTAs, to general supervision for all physical therapy and occupational therapy services furnished in these private practices at this time, and are soliciting comments from the public that we may consider for possible future rulemaking.”

In soliciting comments, CMS is looking to answer a few questions about the implications of general supervision requirements and their possible effects, including:

• Are there safety concerns if the PT or OT isn’t readily available?
• Do state laws permit PTAs and OTAs to practice without a PT or OT in the office or home?
• Would a general supervision policy benefit from periodic visits from PTs and OTs, and if so, how often?
• Will adopting a general supervision policy alter utilization and affect hiring patterns?

CMS concludes by noting again that they’re seeking public comment and supporting data to answer the above questions, so if rehab therapists are looking to get general supervision adopted, they should look to provide both during the comment period, which is open until 5 PM on September 11.

General supervision guidelines are recommended for RTM.

Remote therapeutic monitoring (RTM) guidance continues to evolve with each proposed rule. In this year’s edition, CMS is recommending general supervision guidelines for PTAs and OTAs monitoring patients via RTM. CMS has recognized the increased burden direct supervision guidelines place on effective delivery of RTM services for PTAs and OTAs in private practice so they hope this recommendation will improve access to care and effective delivery of RTM services. CMS does note that although they have made this recommendation, in the 2022 final rule, “PTPPs and OTPPs were intended to be among the primary billers of RTM services.”

Telehealth remains in place through CY 2024.

This isn’t a surprise given that Congress stepped in to pass legislation, but CMS reaffirmed in the proposed rule that telehealth privileges will remain in place at least through the end of CY 2024.

CMS also reiterated that, despite the protestations of rehab therapists, telehealth privileges will remain very much a temporary fixture:

“Despite the evidence, we are still uncertain as to whether all of the elements of a therapy service could typically be furnished through use of only real-time, two-way audio/video communications technology. Because we continue to have these questions, we are not proposing to add these services to the Medicare Telehealth Services List on a Category 1 or 2 basis, for the same reasons described in our CY 2018 through CY 2023 rulemaking cycles. Also, we continue to believe that adding these therapy services to the Medicare Telehealth Services List permanently would potentially generate confusion.”

CMS also goes on to note that while measures were put in place to offer therapists telehealth during the pandemic, they still lack the authority to “expand the list of eligible Medicare telehealth practitioners to include therapists (PTs, OTs, or SLPs) after CY 2024.” So getting permanent telehealth services is going to require therapists to advocate with lawmakers. 

Some telehealth billing flexibilities are continuing, too.

CMS is also opting to leave some of the telehealth billing rules in place through the end of 2024. In the case of institutional providers—that is, providers in a hospital, critical care facility, skilled nursing facility, or home health agency—CMS is maintaining the PHE-era billing flexibilities and allowing institutional providers to bill for telehealth services in the same manner they did through the PHE until the end of 2024—which is to say billing for the same place of service code (POS) for telehealth services as if the services were provided in person (POS 2).

Non-institutional providers—that is, providers not affiliated with the above-listed institutions—are going to have to return to pre-PHE billing practices. As the PHE ended, CMS did away with the use of modifier 95 with services furnished by telehealth that allowed providers to be paid at PFS non-facility rates. CMS is reiterating that claims billed with POS 10 for telehealth services provided in a patient’s home will be paid at the non-facility rate, while POS 2 for services provided other than in a patient’s home will be paid at the facility rate as of January 1, 2024.       

Direct supervision flexibility via telehealth remains the same as well. 

The introduction of temporary telehealth services saw the relaxation of direct supervision guidelines, which permitted PTs and OTs to meet the requirements for direct supervision by making themselves available through two-way, real-time communication. And just as telehealth is sticking around through the end of next year, so too is direct supervision via telehealth.   

As CMS notes in the proposed rule, “In the absence of evidence that patient safety is compromised by virtual direct supervision, we believe that an immediate reversion to the pre-PHE definition of direct supervision would prohibit virtual direct supervision, which may present a barrier to access to many services, such as those furnished incident-to a physician’s service… Recognizing these concerns, we are proposing [to] continue to define direct supervision to permit the presence and “immediate availability” of the supervising practitioner through real-time audio and visual interactive telecommunications through December 31, 2024.”  

CMS recommends a possible win in the fight against MPPR.

The multiple procedure payment reduction (MPPR) rule has been in effect since 2012, and has been a thorn in therapists’ billing sides since that time. However, CMS has highlighted a number of therapy codes for possible exemption from the practice expense (PE) labor calculator that was incorrectly applied by the AMA’s relative value update committee (RUC), stating, “We do not believe that MPPR should be applied to these 19 nominated therapy codes’ clinical labor time entries.” Of the 19 codes, four common to outpatient practice—97110, 97112, 97140, and 97535—would be included. 

Despite resulting in only a nominal increase in reimbursement, this change is nonetheless a positive development for private practices that regularly utilize more than one unit per procedure. 

While the proposed rule does not imply that MPPR will be eliminated completely, its verbiage does raise more questions than answers. CMS has invited comments and is particularly interested in reevaluating the AMA RUC HCPAC recommendations from 2017. 

The conversion factor gets another negative adjustment.

Once again, payment rates for the PFS will be reduced for CY 2024—this time by 1.25%. Thus, the conversion factor will see a decrease of $1.14 (or 3.34%) dropping from $33.89 in CY 2023 to $32.75 in CY 2024. This is a less drastic change compared to last year’s 4.47% cut.

That said, the actual decrease in rates can vary greatly depending upon the geographic practice cost index (GPCI) in a practice's location and the relative value units (RVUs) attached to each code. You can find the updated RVUs in the proposed rule document, or check out the files for both the RVUs and GPCI on this page.    

The therapy threshold is set. 

This year’s proposed rule also sets the proposed KX modifier threshold at $2,330 for physical therapy and speech-language pathology services combined and $2,330 for occupational therapy services—a $100 bump from last year’s amount for both. The targeted medical review threshold is $3,000 and will remain so through at least 2028.

Rehab therapists can get paid for caregiver training.

Another win for rehab therapists is the proposed adoption of CPT codes that would permit PTs, OTs, and SLPs to get paid for providing training to caregivers. Per the 2024 proposed rule, CMS is proposing to establish an active payment status for CPT codes 9X015, 9X016, and 9X017, which cover caregiver training services under a therapy plan of care established by a PT, OT, or SLP. 

Here are the descriptions of the codes as laid out in the proposed rule:

• CPT code 9X015: Caregiver training in strategies and techniques to facilitate the patient’s functional performance in the home or community (eg, activities of daily living [ADLs], instrumental ADLs [IADLs], transfers, mobility, communication, swallowing, feeding, problem solving, safety practices) (without the patient present), face-to-face; initial 30 minutes, 
• CPT code 9X016: each additional 15 minutes (List separately in addition to code for primary service) (Use 9X016 in conjunction with 9X015), and 
• CPT code 9X017: Group caregiver training in strategies and techniques to facilitate the patient's functional performance in the home or community (eg, activities of daily living [ADLs], instrumental ADLs [IADLs], transfers, mobility, communication, swallowing, feeding, problem solving, safety practices) (without the patient present), face-to-face with multiple sets of caregivers.

CMS goes on to explain that “The three codes are to be used to report the total duration of face-to-face time spent by the physician or other qualified health professional providing individual or group training to caregivers of patients” to help the patient perform activities of daily living (ADLs). 

The PT/OT specialty set is getting some additions, subtractions, and changes.   

Not surprisingly, CMS is adding a few measures in the PT/OT specialty set, which are laid out below. 

Not surprisingly, CMS is adding a few measures in the PT/OT specialty set, which are laid out below. 

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MIPS Value Pathways have arrived for PTs and OTs.

The continued expansion of MIPS Value Pathways (MVPs)—prompted by the eventual sunsetting of traditional MIPS—has reached the doors of PT and OT clinics with the recent introduction of the Rehabilitative Support for Musculoskeletal Care MVP (a.k.a. MSK MVP). CMS notes the creation of this MVP is to promote quality care for patients in musculoskeletal care. Providers that this MVP will apply to include PTs, OTs, physiatrists, chiropractors, nurse practitioners, and physician assistants. The proposed rule goes into further detail on the reporting categories for: 

• quality, 
• improvement activities, 
• cost, and 
• the foundational layer.

We’ve provided an overview of each below.

MSK MVP Quality Measures

So far, CMS has proposed 10 quality measures:

• Q217: Functional Status Change for Patients with Knee Impairments
• Q218: Functional Status Change for Patients with Hip Impairments
• Q219: Functional Status Change for Patients with Lower Leg, Foot, or Ankle Impairments
• Q220: Functional Status Change for Patients with Low Back Impairments
• Q221: Functional Status Change for Patients with Shoulder Impairments
• Q222: Functional Status Change for Patients with Elbow, Wrist, or Hand Impairments
• Q478: Functional Status Change
• Q128: Preventive Care and Screening: Body Mass Index Screening and Follow-Up Plan
• Q155: Falls Plan of Care
• Q487: Screening for Social Drivers of Health

MSK MVP Improvement Activities

The improvement activities included in the MSK MVP are:

• IA_AHE_3: Promote Use of Patient-Reported Outcome Tools
• IA_AHE_6: Provide Education Opportunities for New Clinicians
• IA_AHE_9: Implement Food Insecurity and Nutrition Risk Identification and Treatment Protocols
• IA_AHE_12: Practice Improvements that Engage Community Resources to Address Drivers of Health
• IA_BE_6: Regularly Assess Patient Experience of Care and Follow Up on Findings
• IA_BMH_12: Promoting Clinician Well-Being
• IA_BMH_XX: Behavioral/Mental Health and Substance Use Screening and Referral for Older Adults
• IA_CC_1: Implementation of Use of Specialist Reports Back to Referring Clinician or Group to Close Referral Loop
• IA_CC_8: Implementation of documentation improvements for practice/process improvements
• IA_CC_12: Care coordination agreements that promote improvements in patient tracking across settings
• IA_EPA_1: Provide 24/7 Access to MIPS Eligible Clinicians or Groups Who Have Real-Time Access to Patient's Medical Record
• IA_EPA_2: Use of telehealth services that expand practice access
• IA_EPA_3: Collection and use of patient experience and satisfaction data on access
• IA_MVP: Practice-Wide Quality Improvement in MIPS Value Pathways 2000
• IA_PCMH: Electronic submission of Patient Centered Medical Home accreditation
• IA_PSPA_16: Use of decision support and standardized treatment protocols
• IA_PSPA_21: Implementation of fall screening and assessment programs

MSK MVP Cost Performance Measures

There will be one cost measure included in the MSK MVP for low back pain, which aligns squarely with quality measure Q220. This cost measure will evaluate the clinician’s—or clinical group’s—cost to Medicare to provide patients with medical care to treat and manage low back pain.

MSK MVP Foundational Layer

The foundational layer is new territory for PTs and OTs—and it includes both population health measures and promoting interoperability measures. 

Population Health Measures

MVP participants must select one population health measure at the time they register for an MVP. The good news? There are only two to choose from for the 2024 performance year:

• Hospital-Wide, 30-day, All-Cause Unplanned Readmission (HWR) Rate for the Merit-Based Incentive Payment System (MIPS) Groups
• Clinician and Clinician Group Risk-standardized Hospital Admission Rates for Patients with Multiple Chronic Conditions

CMS will incorporate this selection into their calculations when evaluating administrative claims, treating it as a component of the quality performance category score for relevant participants.

Promoting Interoperability Measures

The promoting interoperability measures most relevant to PTs, OTs, and SLPs are as follows (for the complete list, see page 19 of this resource):

As with all proposals, CMS eagerly anticipates receiving feedback on the MSK MVP. One thing worth noting here is the absence of IROMS measures in the MSK MVP, which instead relies heavily on FOTO measures—at least, for now. By providing feedback and highlighting this omission, there is an opportunity to broaden the range of reporting options and enhance patients' access to care.

The volume of proposed changes coming from CMS is enough to have steam shooting from your ears. But don’t sweat those less-than-ideal proposed changes just yet; there’s still time to get CMS to cool their jets, provided rehab therapists take advantage of the comment period that runs until September 11 to make your voice heard.