FAQ: The 2022 Medicare Proposed Rule and Other Perplexing Payer Regulations

Introduction

Adhering to Medicare regulations—especially as they evolve in perpetuity—is a titanic task, even for the most seasoned billers and compliance aficionados. But not everyone who needs to know this information has time to become a super-star claim wrangler—which is exactly why Rick Gawenda, PT, Founder and President of Gawenda Seminars & Consulting, and Heidi Jannenga, PT, DPT, ATC, WebPT Co-Founder, and Chief Clinical Officer joined forces to host an hour-long presentation about the 2022 Medicare proposed rule (and other perplexing regulations)! We received so many questions during the presentation that our hosts didn’t have a chance to answer them all, so our team did its best to answer the most common queries here. 

2022 Proposed Rule

How long do I have to submit comments to CMS?

Great question! CMS’s comment period closes September 13, 2021. So, time is of the essence! To make it easier on you, we put together a free and totally customizable template you can use to submit your comments to CMS.  

Are any other medical professionals seeing a decrease for 2022 as well?

Oh yes. As mentioned, CMS proposed cutting the conversion factor by approximately 2% (from $34.8931 to $33.5848), which is estimated to impact a host of healthcare specialties. For instance, radiation oncology services are facing an 8.75% cut, and interventional radiology is facing a whopping 9% cut. For a full list of other medical professions that will presumably experience a decrease in pay, check out page 1,180 of CMS’s 2022 proposed rule.

Does the proposed rule exclude critical access hospitals (CAHs)?

Generally speaking, yes. CAHs aren’t paid under the Medicare Physician Fee Schedule and are therefore excluded from its legislation. 

CQ and CO Modifiers

If a PT and PTA provide treatment in tandem (and provide documentation), can we bill the service without the CQ modifier? 

Yep! If a PT and PTA provide treatment in tandem, you can bill that service without the CQ modifier—just be sure to explain that in your documentation! (Keep your eye on the WebPT blog for an article that explains this in more detail.) 

Do the 15% cuts apply to all PTAs—even those who work in a hospital or physician-owned physical therapy clinic? Why is CMS doing this?

Yes and no. The 15% payment reduction applies to outpatient therapy in all practice settings reimbursed under the Medicare Physician Fee Schedule, except for a critical access hospital, when the service(s) are provided in whole or in part by a PTA or an OTA. This would include physician-owned therapy practices as well. The reason critical access hospitals are not included is because they are paid on a cost-ratio basis and not under the Medicare Physician Fee Schedule.

CMS is moving forward with this payment differential in order to align its payment policies with that of other assistant medical professionals. PAs and NPs, for instance, are also paid at 85% of the physician fee schedule. 

Can you use the CQ modifier in an office that uses incident-to billing?

Nope. Per this resource from CMS, you do not need to apply the CQ or CO modifier when using incident-to billing.  

Do the CQ and CO modifiers apply in non-outpatient settings, like home health or in critical access hospitals (CAHs)? Are there any other settings where CQ and CO modifiers apply?

The short answer is no. The CQ and CO modifiers only apply to PTA and OTA services when provided in whole or in part in an outpatient therapy setting. Outpatient therapy settings include the following:

• Private practice (both therapist- and physician-owned);
• Rehabilitation agencies;
• Comprehensive outpatient rehabilitation facilities;
• Skilled nursing facilities providing Part B therapy services;
• Home health agencies providing Part B therapy services; and
• Hospital outpatient therapy departments (excluding critical access hospitals).

Which payers require these modifiers?

We don’t have a comprehensive list of all of the payers that require these modifiers, but we do know that Medicare is leading the charge, and others (e.g., Tricare, United HealthCare, Humana) are following suit. We recommend reaching out to your commercial and state payer representatives to see if they’re implementing these modifiers.  

What if my clinic leader chooses to bill everything without the CQ modifier since it’s all billed under the therapist, anyway? How will CMS prevent this type of situation?

Be careful, because that sounds like fraudulent billing. Here’s a quote from CMS: “When you submit a claim for services provided to a Medicare beneficiary, you are filing a bill with the Federal government and certifying you earned the payment requested and complied with the billing requirements. If you knew or should have known the submitted claim was false, then the attempt to collect payment is illegal.”

CMS identifies and addresses fraudulent billing situations by conducting audits, which often result in huge financial penalties for the targeted clinics and providers. 

So if a PTA has their own schedule, will all of their claims be reduced by 15%?

Not quite. The CQ and CO modifiers don’t apply to full claims; instead, they apply to individual line and service items. So if a PTA keeps their own schedule, then the CQ modifier will most likely apply to all of the services they provide—but it won’t apply to any billable services that same patient receives from a PT. 

Assistant Supervision

If a physical therapist is not in the clinic, can an occupational therapist oversee PTAs for Medicare and all insurances?

From what we understand, a PT must oversee a PTA and an OT must oversee an OTA for Medicare and all other insurance purposes. With that said, it’s important to check out your state’s specific supervision requirements. Check out this resource (courtesy of Gawenda) to learn more about supervision requirements. 

When a PT is virtually supervising a PTA, do they have to be in a virtual session the whole time or just virtually available if needed?

Per Gawenda (and in accordance with Medicare’s current PHE guidelines), a PT is not required to remain in an active virtual session the entire time they supervise a PTA. They just need to be available. That said, it’s important for you to verify the supervision regulations in the state in which you practice.

Is it still considered "direct" or “general” supervision if it takes place virtually?

During the public health emergency (PHE)—which is still active—direct supervision can be conducted virtually for Medicare patients. That said, you should always check the supervision requirements of the state in which you practice. 

How do we supervise a PTA via two-way video communication? Do we have to observe the treatment provided by a PTA in real time—or merely review a video of the treatment?

As the PT, you simply need to be available by two-way audiovisual communication. For example, the PTA should be able to open a live, HIPAA-compliant video chat with the PT as needed and adjust the camera so the patient is visible. From there, the PT needs to be able to provide instruction as needed. Be sure, as well, to check the supervision regulations of the state in which you practice.

What is considered two-way audio and video? Can I provide treatment via audio only?

Two-way video encompasses any live stream where a PT and PTA can visually see and hear one another—think HIPAA-compliant video chats like Zoom for Healthcare, or Virtual Visits. Audio-only calls are what you would think of as a “regular” phone call. You cannot provide telehealth over an audio-only medium, as that would be considered a telephone visit—another treatment entirely.  

Can I bill Medicare when an aide—who is overseen by a PT—provides therapeutic exercise with a Medicare beneficiary? 

Nope. Medicare only pays for treatments that are provided by a licensed therapist or assistant. If the aide is the person who’s providing the treatment to the patient (even if it's only therapeutic exercise), you cannot bill Medicare—or Tricare, for that matter—for that time. And these rules aren’t necessarily limited to Medicare, either. Many commercial payers are putting policies in place that specify that care must be furnished by a licensed provider—and aides are not licensed.

Therapy Assistants

Can a PTA or OTA provide care for a patient with Tricare?

Yes! As of April 2020, PTAs and OTAs can treat Tricare patients. 

Therapy Threshold

If a patient exceeds the Medicare threshold and wishes to continue their treatment, should I use the GA modifier and have the patient complete an ABN? 

Nope! Remember that Medicare pays for medically necessary treatment—even when the charges surpass the therapy threshold and the medical review threshold. So, if you’re providing medically necessary care to your patient, simply bill with the appropriate therapy modifier (i.e., GP, GO, or GN) and the KX payment modifier. Additionally, you shouldn’t need an ABN on file, as Medicare should cover these medically necessary services.

How do I document for medical necessity above the therapy threshold?

Documenting for medical necessity looks the same at any time—even when you’re billing above the therapy threshold. Because of this, your documentation must always be defensible, and ultimately prove that the provided therapy services were medically required and that the outcomes resulted in the significant improvement of the patient’s condition in a “reasonable and generally predictable period of time.” (Either that or that the patient requires skilled interventions in order to maintain function.)

What are the chances that Medicare will begin to count PT and SLP services separately when it comes to the therapy threshold?

This seems pretty unlikely. We haven’t heard any rumblings from CMS about these kinds of changes—and CMS has calculated the threshold this way for years.

MIPS

Are certified rehab agencies still excluded from MIPS? 

Per Gawenda, certified rehab agencies (e.g., outpatient rehab facilities) cannot participate in MIPS because the therapists who work within these settings submit claims using UB-04 claim forms. MIPS only applies to professionals who submit claims on CMS-1500 claim forms.

Is MIPS mandatory for those who submit claims on a CMS-1500 form?

Not necessarily! Mandated MIPS participation is determined on an individual level. Most individual therapists aren’t mandated to report, though. Check out this handy link to see if MIPS is mandatory for you.

Will CMS formally implement MIPS—or will it be replaced by MVPs?

MIPS is technically already formally implemented—though not every therapist needs to participate currently. As for MVPs, they are actually a new function of the MIPS program that is aimed to reduce burden once implemented in 2023. That said, CMS is still looking to see where therapists fit into MVPs. We can expect to see more about MVPs—particularly from a rehab therapy lens—when the 2023 proposed rule comes out next summer. Stay tuned!

Dry Needling 

Are insurance companies paying for dry needling?

Generally speaking, no. Most major national payers (including Medicare) do not pay for dry needling. If you’re unsure if the commercial carriers you’re contracted with pay for dry needling, refer to your contract or call the carriers’ provider representatives to check.  

I’d like to get more clarification on what does and does not require an ABN—especially in regard to dry needling.

The ABN notifies Medicare patients that a therapy service they plan to receive may or may not be covered by Medicare, either because the service is usually not covered or because said services don’t meet Medicare’s requirements of what is “reasonable or necessary.” To learn what is—and is not—covered, you can sift through the Medicare National Coverage Determinations Manual. But, you may appreciate referring to our condensed version in blog form.

Because dry needling is never covered by Medicare, you can issue a voluntary ABN to patients.  

Do we still need to bill the dry needling CPT codes to Medicare, even though they aren’t covered? 

Nope. Because dry needling is statutorily excluded from Medicare coverage, you do not have to bill Medicare for dry needling—unless you issue a voluntary ABN and the patient requests that you do so by selecting option two. 

Are we able to charge Medicare patients up front for dry needling?

Yes. Since dry needling is a non-covered service, you can collect cash from patients at the time of service. That said, CMS does suggest providing a voluntary ABN to the patient to inform them that the service is not covered. If the patient selects “Option 2” (i.e., they ask you to bill Medicare), then apply the GX modifier and bill the dry needling codes.

Medicare Assignment and Cash-Pay 

Why would a patient choose to see a PT who’s not accepting assignment if they have to pay extra?  

When PTs choose not to decline assignment from Medicare, they’re still contractually bound to Medicare. That means that Medicare will still pay for services provided by the PT—and patients shouldn’t see a big jump in their healthcare costs. That said, some patients may voluntarily choose to pay more for their care because they believe in the skills and abilities of specific providers. It’s the same with any cash-pay clinic; you have to sell patients on the idea that your out-of-pocket care is worth the higher prices. 

How do you bill when you don’t accept Medicare assignment? 

On a CMS-1500 claim form, item 26 asks “Accept Assignment?” followed by the option to mark “Yes” or “No.” If you are not accepting assignment, select “No.” That said, you cannot choose to decline assignment without first contacting Medicare and completing the process to become a non-participating provider. 

I am a cash-based PT who is not enrolled in Medicare. What services can I provide? 

This is a bit tricky. When it comes to non-Medicare patients, you’re well within your rights to provide most traditional and non-traditional services—as long as they fall under your state’s physical therapy practice act. However, if you’re a cash-pay provider treating a Medicare patient, the services you can provide (and the services you can collect cash for) depend on your relationship with Medicare. These two blog posts take a deep dive into the rules governing physical therapists’ involvement with Medicare. Be sure to pay extra attention to the information pertaining to ABNs under the “Enrolled as a participating provider” section in the first linked post.

Do you have to enroll with medicare if your practice is solely wellness?

Not necessarily! You actually have three options when it comes to dealing with Medicare. You can either:

• Have no relationship whatsoever;
• Enroll as a participating provider; or
• Enroll as a non-participating provider.

Each option comes with its own set of rules as it relates to whether you can or cannot accept Medicare patients in your cash-pay clinic. Check out all the details in this blog post.

If telepractice remains a covered service for SLPs, but the treatment is not medically necessary (i.e., the client wants to continue to receive services on a private pay basis) do I still have to submit a claim to Medicare?

Per Gawenda, if these services are not medically necessary, then they’re not covered by Medicare. That means you can do a cash exchange for providing them—even after the end of the pandemic. In this situation, Gawenda recommends you issue a voluntary ABN to the Medicare beneficiary.

Medicare Advantage 

Should Medicare HMO plans be treated the same as normal Medicare plans (e.g., using the 8-minute-rule, not booking over another Medicare patient).

Not necessarily. Medicare HMO plans (or Medicare Advantage plans) do not always follow Medicare’s rules. For a quick overview of the ways that Medicare and Medicare Advantage plans differ, check out this blog post. 

Do Medicare Advantage plans follow the NCCI edits?  

Not necessarily. Since Medicare Advantage plans are offered by private companies—their rules vary from plan to plan—and they don’t always adopt Medicare’s billing changes. 

Miscellaneous 

If a provider or facility submits claims on a CMS-1500 form, does that make them a private practice? 

Nope. Providers and facilities that bill CMS-1500 claim forms are simply providing (and billing) for outpatient services. In other words, they’re furnishing care to patients who have not been admitted into a facility. A private practice is simply an outpatient medical organization that’s owned by providers “rather than by a hospital, health system or other entity.” 

When providing home health therapy services and billing under Medicare Part B, are OMTs such as LEFS and QDASH required for documentation—or are other tests like Tinetti or TUG acceptable?

Per this resource, “Medicare requires therapists to use at least one OMT.” So in this case, no: Tinetti and TUG wouldn’t quite cut it. 

Can you explain the basics of the therapy threshold and medical review threshold again?

The therapy threshold is a dollar amount set by Medicare (and usually updated each year) that represents the cost of therapy services that a beneficiary can use within a single calendar year. The 2021 therapy threshold for PT and SLP services—combined—is $2,110. The threshold for OT services is $2,110.

Similar to the therapy threshold, the targeted medical review threshold is another dollar value (set by Medicare) that signals when Medicare may choose a provider or practice for a targeted medical review (i.e., an audit). This threshold is $3,000 for PT and SLP services (combined) and $3,000 for OT services in 2021. To learn more, dig deeper in this blog.

How frequently does Medicare require PTs to complete a progress note?

At a minimum, a licensed therapist must complete a progress note for every patient by his, her, or their tenth visit. For more information pertaining to progress notes, check out this resource.

Don’t see the answer to your question? Drop a comment below, and our team will do its best to wrastle you up an answer.