October 01, 2015

Summary of Center for Medicare and Medicaid Services (CMS) Rule for Covering Cost of Advance Care Planning Services

Charles P. Sabatino

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 37, Issue 1.)

 

On October 30, 2105, the Centers for Medicare and Medicaid Services (CMS) released it final physician fee schedule for 2016 [CMS-1631-FC], approving two reimbursement codes for advanced care planning (ACP). While the rule is final and effective January 1, CMS invites further comments on the rule by December 29, 2015.

Below is a summary of the details of the rule, paraphrasing CMS’s explanation of what the rule means in practice and its responses to several issues that were raised in some 725 public comments they received during the comment period.

1. New Codes

  • CPT code 99497 (Advance care planning including the explanation and discussion of advance directives such as standard forms (with completion of such forms, when performed), by the physician or other qualified health professional; first 30 minutes, face- to-face with the patient, family member(s) and/or surrogate);
  • An add-on CPT code 99498 (Advance care planning including the explanation and discussion of advance directives such as standard forms (with completion of such forms, when performed), by the physician or other qualified health professional; each additional 30 minutes (List separately in addition to code for primary procedure)).

The services could be paid on the same day or a different day as other evaluation and management (E/M) services. Physicians’ services are covered and paid by Medicare would be reported when the described service is reasonable and necessary for the diagnosis or treatment of illness or injury.

2. Valuation

  • We believe the recommendation of the American Medical Association/Specialty Society Relative Value Update Committee (RUC) accurately reflects the resource costs involved in furnishing the services described by CPT codes 99497 and 99498, and therefore, are finalizing our proposal to adopt the RUC-recommended values for both codes.
  • [NOTE: Our understanding of the above is that this means CMS proposes a payment of approximately $86 for the initial consultation (code 99497) and $75 for any 30-minute add-on conversation (code 99498). The relative value units (RVUs) for these codes are estimated at 1.5 and 1.4, respectively. RVUs are a measure of value used to calculate Medicare reimbursement for physician services in various settings.]

3. No National Coverage Decision
(which would avoid any local variation in coverage)

  • We believe it may be advantageous to allow time for implementation and experience with ACP services. Third party contractors (i.e., the insurance companies who handle payment for Medicare) can use their discretion to determine the utilization of these codes. By including ACP services as an optional element of the Annual Wellness Visit (AWV), for both the first visit and subsequent visits, this rule creates an annual opportunity for beneficiaries to access ACP services should they elect to do so.

4. Cost Sharing

  • When a beneficiary elects to receive ACP services, we encourage practitioners to notify the beneficiary that Part B cost sharing will apply as it does for other physicians’ services (except when ACP is furnished as part of the AWV). We plan to monitor utilization of the new CPT codes over time to ensure that they are used appropriately.

5. Intersection with Other Services
Whether and how the ACP codes could be billed in conjunction with evaluation and management (E/M) visits or services that span a given time period, such as 10- or 90-day global codes or Transitional Care Management (TCM) and Chronic Care Management (CCM) services.

  • In this case, CPT instructs that CPT codes 99497 and 99498 may be billed on the same day or a different day as other E/M services, and during the same service period as TCM or CCM services and within global surgical periods. We are also are adopting the CPT guidance prohibiting the reporting of CPT codes 99497 and 99498 on the same date of service as certain critical care services including neonatal and pediatric critical care.

6. Who Can Furnish

  • We note that the CPT code descriptors describe the services as furnished by physicians or other qualified health professionals, which for Medicare purposes is consistent with allowing these codes to be billed by the physicians and non-physician practitioners (NPPs) whose scope of practice and Medicare benefit category include the services described by the CPT codes and who are authorized to independently bill Medicare for those services.
  • We expect the billing physician or NPP to manage, participate and meaningfully contribute to the provision of the services, in addition to providing a minimum of direct supervision. We also note that the usual PFS payment rules regarding “incident to” services apply, so that all applicable state law and scope of practice requirements must be met in order to bill ACP services.
  • We do not believe it would be appropriate to create an exception to allow these services to be furnished incident to a physician or NPP’s professional services under less than direct supervision because the billing practitioner must participate and meaningfully contribute to the provision of these face-to-face services.

7. Settings of Care

  • We agree with commenters that ACP services are appropriately furnished in a variety of settings, depending on the condition of the patient. These codes will be separately payable to the billing physician or practitioner in both facility and non-facility settings and are not limited to particular physician specialties.

8. Payment for ACP Along the Entire Health Continuum

  • We are adding ACP as a voluntary, separately payable element of the AWV. We are instructing that when ACP is furnished as an optional element of AWV as part of the same visit with the same date of service, CPT codes 99497 and 99498 should be reported and will be payable in full in addition to payment that is made for the AWV. Under these circumstances, ACP should be reported with modifier -33 and there will be no Part B coinsurance or deductible, consistent with the AWV.

9. How it Applies to Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs) that Furnish Medicare Part B Services
(since they are paid in accordance with the RHC all-inclusive rate system or the FQHC prospective payment system)

  • Beginning on January 1, 2016, ACP will be a stand-alone billable visit in a RHC or FQHC, when furnished by a RHC or FQHC practitioner and all other program requirements are met.

10. Standards/Training

  • We will continue to consider whether additional standards, special training or quality measures may be appropriate in the future as a condition of Medicare payment for ACP services.

11. Telehealth

We note that we did not propose to add ACP services to the list of Medicare telehealth services, so the face-to-face services described by the codes need to be furnished in-person in order to be reported to Medicare.

12. Potential for Bias
(i.e., against choosing treatment options involving living with disability, requiring physicians to discuss questionable treatment options (such as physician assisted suicide or other patient choices that might violate individual physician ethics) and similar issues.)

  • We believe the services described by the new codes are appropriately provided by physicians or using a team-based approach where ACP is provided by physicians, NPPs, and other staff under the order and medical management of the treating physician. Since the ACP services are by definition voluntary, we believe Medicare beneficiaries should be given a clear opportunity to decline to receive them. We note that beneficiaries may receive assistance for completing legal documents from other non-clinical assisters outside the scope of the Medicare program. Nothing in this final rule with comment period prohibits beneficiaries from seeking independent counseling from other individuals outside the Medicare program—either in addition to, or separately from, their physician or NPP.

13. Beneficiary Considerations
Several commenters suggested that CMS pursue waivers of cost sharing for ACP services or that cost sharing should vary by the condition of the patient.

  • We lack statutory authority to waive beneficiary cost sharing for ACP services generally because they are not preventive services assigned a grade of A or B by the United States Preventive Services Task Force (USPSTF); nor may CMS vary cost sharing according to the patient’s diagnosis. Under current law, the Part B cost sharing (deductible and coinsurance) will be waived when ACP is provided as part of the AWV, but we lack authority to waive cost sharing in other circumstances.

American Bar Association Policy

Related Commission-supported policy is online at: http://www.americanbar.org/groups/law_aging/policy.html.

  • Advanced Care, February 2015, 100
    Urges federal, state, local, territorial, and tribal governments to enact legislation and regulation that will promote six enumerated components in the provision of care to persons with advanced illness.
  • Medical Decision-Making, August 2012, 106A
    Amendments to the Patient Self Determination Act, calling for strengthening advance care planning rights and procedures for health care decisions. ■

Charles P. Sabatino

Charles P. Sabatino is the Director of the ABA Commission on Law and Aging in Washington, DC.