FAQ: New Year, New Regulations: 2022 Final Rule Highlights

Introduction

The new year is a special time, when people turn over a new leaf, usher out bad habits, and face the future with hope and excitement. But we’re not the only ones reinventing ourselves each year—healthcare regulations do that, too. Every year, the Centers for Medicare and Medicaid Services (CMS) update the Medicare rules and fee schedule, and PTs, OTs, and SLPs must master the changes therein before January of 2022. 

To help rehab therapists understand these regulation updates, compliance expert Rick Gawenda and Heidi Jannenga hosted an hour-long webinar that was chock full of complex compliance info. During the presentation, they received too many questions to answer, so the WebPT content did their best to answer those most frequently asked. Check ‘em out below!

Therapy Assistants and Supervision

What are the current PTA/OTA supervision requirements for Medicare patients in private practices? 

In private practice clinics that submit claims on a 1500-claim to Medicare, therapy assistants must practice under direct supervision. This means the billing therapist must be physically onsite—though they don’t necessarily have to be in the treatment room. Currently, due to the COVID-19 public health emergency, direct supervision can be achieved via two-way, real-time audio and visual telecommunication—though that allowance is set to expire on December 31, 2022.

Keep in mind that these requirements don’t account for state practice act restrictions. Therapists must adhere to the strictest rule that applies to them—and some state practice acts do require higher levels of supervision. 

Can I use my OTA as a tech if he does not bill for the services?

Since therapy techs do not need specific certifications or licenses to work in a clinic, you could ask your therapy assistants to work as techs in your clinic as allowed by your state practice act. However, this may not be the best use of your assistant’s skills, and you may lose out on more revenue than you expect by doing this. In addition, the OTA would be held to their highest license in the state they practice in. I would recommend you contact both your PT and OT state licensing boards and get their opinions.

Does the rule expanding the definition of direct supervision expire in 2021 or 2022? 

Currently, the expanded definition of direct supervision expires either on December 31, 2022—or through the end of the calendar year in which the PHE ends. 

Modifiers 

We are having some issues with the GP and XU modifiers when we bill manual therapy and mechanical traction together. How should we approach this?

Generally speaking, we don’t recommend using the X modifiers (including XU) when billing. Very few payers accept these modifiers, and CMS has remained pretty quiet on the subject of rehab therapists using them. For that reason—and since 97140 and 97012 make an NCCI edit pair—we recommend billing the pair with the 59 modifier instead.

When do you add the KX modifier?

Rehab therapists should apply the KX modifier when they furnish medically necessary services above the therapy threshold—which is $2,150 for PT and SLP combined and $2,150 for OT in calendar year 2022. When therapists append the KX modifier to a claim, they’re attesting that the services they’re providing are medically necessary—and that Medicare should cover them. 

CQ/CO Modifiers and Payment

Can you describe the general rules for the CQ and CO modifiers? When do I need to apply them?

Happily! According to this recent blog post (and as a general rule of thumb) CQ and CO modifiers should be applied “when an assistant provides a service in whole or in part (i.e., they provide more than 10% of a service)... That payment modifier will signal to CMS that the specific line item (not the whole claim) should be paid at 85% of its full value.” 

While the aforementioned blog post goes through each of the rules surrounding CQ and CO modifier applications, we’ll summarize the major ones here:

• If a therapist and an assistant provide a service together, the CQ and CO modifiers do not apply.
• The 10% benchmark will not apply when a therapist provides “more than the midpoint of a 15-minute timed code” (i.e., eight or more minutes).
• If a therapist provides one unit of a service and a therapy assistant independently provides another unit of that same service, you can split the service units onto two different claim lines and apply the CQ or CO modifier to the applicable units. 
• The CQ and CO modifiers do not technically require any additional documentation (though your documentation should always be thorough and defensible). 

You can also check out this CMS resource that provides a detailed background on CQ and CO modifiers (and even includes billing examples).

Does the order of the CQ and CO modifiers and the GP and GO modifiers matter on the claim form? 

With regard to their overall order, not really. Generally speaking, pricing modifiers should always be sequenced before payment modifiers and/or location modifiers. 

One thing to note per CMS, however, is that the CQ modifier must be reported with the GP therapy modifier and the CO modifier must be reported with the GO therapy modifier.

Should we apply CQ and CO modifiers to Humana, Tricare, and UHC claims?

Yes, yes, and yes. Each of these insurers requires CQ and CO modifier application when appropriate. If you’re curious as to whether you should use these modifiers when billing other payers, our best recommendation is to reach out to each payer directly (or even do a quick Google search online!). 

Do the CQ and CO modifiers apply to hospital-based, outpatient clinics?

Yes, with the exception of critical access hospital outpatient clinics. You can view a list of all healthcare locations that are required to use the PTA modifier when billing for Medicare here. 

​​Do we need to use the CQ and CO modifiers in incident-to billing? 

Nope! Per CMS, “the CQ/CO modifiers apply only to services of physical and occupational therapists in private practice; and not to the therapy services furnished by or incident to the services of physicians or nonphysician practitioners (NPPs)—including nurse practitioners, physician assistants, and clinical nurse specialists—because PTAs and OTAs do not meet the qualifications and standards of physical or occupational therapists…” 

To make it even simpler, the services of PTAs and OTAs can’t be billed incident-to the physician. The services of a PTA or an OTA are billed under the NPI of the supervising PT or OT respectively.

CPT Codes

When is it appropriate to use the new RTM codes in a PT or OT setting?

Per Rick Gawenda, “RTM codes monitor health conditions, including musculoskeletal system status, respiratory system status, therapy (medication) adherence, and therapy (medication) response, and as such, allow non-physiologic data to be collected. Reportedly, data also can be self-reported as well as digitally uploaded.”

So, generally speaking, these codes will apply when you send home a patient with an FDA-defined medical device and monitor and collect data on said patient. For more detailed information, we strongly encourage you to check out this American Medical Association book, 

2022 CPT® Changes: Insider's View.

How does direct supervision play into the RTM codes? 

Per Gawenda, CMS has specified that PTAs and OTAs can provide RTM codes under direct supervision of a PT and OT respectively. 

Dry Needling

Is an ABN optional for dry needling because Medicare never covers it when it’s provided by a PT? 

Yep. Since dry needling is considered a statutorily non-covered service, an ABN is not required. That said, you may issue a voluntary ABN as a courtesy to the patient. 

If Medicare won’t pay for dry needling codes, how do we bill for dry needling therapy services?

When it comes to Medicare beneficiaries, you’ll have to provide dry needling on a cash-pay basis if you’d like to seek compensation for your services. You do not need to bill Medicare for the CPT codes; simply set a price for the CPT codes based on fair market value, and go from there. 

My practice provides dry needling, but designates it a “no charge” service for Medicare and other payers. Is this allowed?

We strongly advise against doing this. While you can offer dry needling as a “no charge” service to Medicare beneficiaries, the same may not be true for other payers. Some payers list dry needling as “experimental” or “investigational” which legally bars providers from offering the service at all while under contract. This means that cash-pay isn’t even an option here. The therapists at your practice should review your contracts before providing any more dry needling and speaking with a payer representative for further clarification.  

Telehealth

Can a PT, OT, or SLP provide telehealth past the end of the PHE—even when they’re not billing incident-to a physician?

Yes, but they will not be reimbursed for those telehealth visits by the Medicare program. You could charge the Medicare beneficiary cash and no ABN would be required since once the PHE is over, outpatient PT, OT and SLP delivered via telehealth are a statutorily non-covered service.

Is this accurate? If an OT works in a physician-owned practice and bills incident-to a physician, they will be able to bill telehealth even after the public health emergency ends.

As it stands today, yes—at least through December 31, 2022. 

Will COTAs be included in the Expanded Telehealth Access Act? Furthermore, will any therapy assistants be included?

For now, according to the Expanded Telehealth Access Act, therapy assistants can provide telehealth, however—and this is important—you need to check your state practice act. Some state therapy acts do not permit therapy assistants to provide telehealth. Equally important: While CMS states that assistants can furnish—and get paid for services—that are provided to Medicare beneficiaries, they must follow the strictest supervision guidelines that apply to them. This helpful blog explains more on this subject. 

MIPS

Where can I check to see if I have to participate in MIPS?

You can view your MIPS participation status here: qpp.cms.gov/participation-lookup. Just be sure to have your NPI on hand to use the tool!

Do CORFs that bill Medicare Part A have to participate in MIPS?

Nope. MIPS is a payment incentive program designed for Part B billing, so facilities that exclusively bill Part A are not eligible to participate. 

Can you review the measures we can report via claims? 

For an overview of reportable MIPS measures, check out this guide. 

How does the category weighting for small practices affect our overall score?

For small practices, 50% of their overall MIPS score comes from the Quality category and 50% will come from their Improvement Activities. As an example:

• If they score 100% in Quality and 100% in IA, they'll get a MIPS score of 100 points (out of 100).
• If they get a 50% in Quality and a 100% in IA, they'll get 75 total MIPS points.
• If they get a 70% in Quality and an 85% in IA, they'll get 77.5 total MIPS points.

What is the difference between reporting for MIPS as a group or as an individual?

Good question! For a comprehensive answer, we recommend you check out this resource here.

Medical Necessity

Does Medicare consider care for chronically ill patients who may not make significant progress (but will have significant decline if they do not receive care) medically necessary?

Yes! Medicare completely covers maintenance care.

What if a therapist wants to discharge a patient because they no longer need therapy, yet the patient is persistent that they need more therapy?

If the patient would like care that you do not consider medically necessary, you can choose to provide treatment using an ABN. Ultimately, however, it’s up to you! You are the expert. If you feel that care is no longer needed, you can most certainly discharge the patient. 

If CMS performs a medical review and finds that treatment was not medically necessary, are there implications going forward for the provider, the group practice, or both?

According to John Wallace, WebPT Senior Vice President of Revenue Cycle Management, a target probe and education audit is its own process, with an outcome that typically doesn’t result in any long-term negative stigma toward the provider or practice. In the case of an additional development request (ADR), this process is limited to one patient,and is also not likely leading to a long-term negative consequence. Any large scale fraud/abuse audit or enforcement action, however, could have legal or regulatory ramifications for provider, group practice, or both. 

Miscellaneous

Is there any expectation that the PHE will be extended?

We don’t know for certain, but we suspect that the PHE will be extended come January, yes. 

Does the MPPR only apply if the same code is billed multiple times in one session? 

The multiple procedure payment reduction (MPPR) applies when rehab therapists bill more than one “always therapy” service during a single visit (e.g., billing 97140 and 97110 during a single visit).

Can you explain what the sequestration and pay-as-you-go reductions are?

The sequester reduction is a component of the 2011 Budget Control Act. Essentially, CMS reduces payments by 2% after all other payment reductions are applied in order to maintain its budget. The pay-as-you-go reduction is similar: it's a result of the Statutory Pay-As-You-Go Act of 2010 (Statutory PAYGO), which limits federal spending. This would have reduced Medicare payments by 4%. Both of these payment reductions are temporarily on hold due to the PHE. 

Can we collect deductibles—and copays—for Medicare and Medicaid dual eligible patients?

This is a bit of a tricky one. According to this resource, yes, “but as permitted by federal law, most States limit their payment of Medicare deductibles, coinsurance, and copays for QMBs. Regardless, persons enrolled in the QMB program have no legal liability to pay Medicare providers for Medicare Part A or Part B cost-sharing.”

To be 100% sure, we recommend you ask your Medicare Administrative Contractor—they’ll set you straight!

Does Medicare require a physician's referral for physical therapy in a state that has direct access?

According to the APTA, “Every state, the District of Columbia, and the U.S. Virgin Islands has lifted all or some of the referral requirements or order provisions for physical therapist evaluation and treatment, meaning that PTs can provide evaluation and treatment services without the need for an order or referral from any other health care professional in accordance with state law.” 

However, in order to be reimbursed for outpatient therapy services by the Medicare program, a physician or non-physician practitioner must sign and date the evaluating therapist’s plan of care, certifying the need for outpatient therapy services. Per CMS Publication 100-02, Medicare Benefit Policy Manual, Chapter 15, Covered Medical and Other Health Services, Section 220.1.1, CMS states, “Although there is no Medicare requirement for an order, when documented in the medical record, an order provides evidence that the patient both needs therapy services and is under the care of a physician. Payment is dependent on the certification of the plan of care rather than the order, but the use of an order is prudent to determine that a physician is involved in care and available to certify the plan.”

And that’s a wrap on our annual final rule webinar—whew! Don’t see your question up here? Feel free to drop a comment below, and our team will do its best to whip up an answer for you!