CMS’ proposed rule aims to increase access to behavioral health providers |  Baker Donelson

CMS’ proposed rule aims to increase access to behavioral health providers | Baker Donelson

On July 7, 2022, the Centers for Medicare & Medicaid Services (CMS) issued its proposed 2023 physician fee schedule rule (proposed rule), seeking public comment on payment policy changes and other Medicare matters. part B. The proposed rule announced several goals, one of which was to expand access to covered behavioral health services that include mental health as well as substance use disorder treatment. CMS aims to achieve this goal in multiple ways, including by changing provider oversight requirements, creating a new shared service to integrate behavioral health, improving opioid treatment programs, and expanding the use of post-emergency telehealth for public health (PHE) COVID-19.

This article focuses on a proposed change that would relax the requirements for oversight of services provided in the case of physician services, which could allow for an expansion of the clinical team that can provide Medicare-billed behavioral health services. Here is a summary of the meaning of this part of the proposed rule and the impact it may have.

The proposal

As we continue to live through the COVID-19 PHE, demand for behavioral health services remains high and growing, according to 2020 and 2021 surveys conducted by the American Psychological Association. Yet the supply of behavioral health services is constrained by a massive workforce shortage that is expected to affect numerous behavioral health providers by 2025, including psychiatrists, psychologists, mental health and substance abuse social workers, school counselors, and marriage and family therapists as listed in HRSA’s National Center for Health Workforce Analysis. Existing restrictions on oversight of these services further limit the use of certain behavioral health providers. CMS aims to address these concerns in the proposed rule by amending the current oversight requirements.

The Medicare statute does not have a benefit category for services provided by licensed professional counselors (LPCs) or licensed marriage and family therapists (LMFTs). Instead, LPC and LMFT services are billed indirectly when providers perform their services as “support staff.” Under current CMS regulations, support staff are individuals providing behavioral health services related to physician services who must act under the “direct supervision” of a physician (or other practitioner). See 42 CFR § 410.26(a). Direct observation is defined as the observing physician must be present in the office where the services are provided (Note: This may include virtual presence via audio/video technology during the PHE). look 42 CFR § 410.32(b)(3)(ii). This means that support staff are limited to providing services when an attending physician is also present.

The proposed rule offers greater flexibility for support staff by allowing these individuals to work under the “general supervision” of the billing physician. This would mean that the physician has “overall direction and control,” but the physician’s presence would not be required in the office during treatment. 42 CFR § 410.32(b)(3)(i). In this way, beneficiaries needing behavioral services such as counseling or cognitive behavioral therapy will have easier access to more providers in different settings. CMS specifically noted in its announcements that it intends this proposal to allow greater use of behavioral health providers such as “marriage and family therapists, licensed professional counselors, addiction counselors, certified peer recovery specialists, and others” to help to address the growing behavioral health needs of beneficiaries.

CMS specifically noted in the proposed rule that support staff would still be required to meet all other requirements to provide services, including obtaining state licensure, thereby ensuring that beneficiaries are treated by qualified individuals.

The impact on behavioral health providers

If this proposed rule becomes final, increased access to physician-directed behavioral health providers will mean additional resources for behavioral health clinical teams, but this ability to reach more patients will also increase the need to coordinate care between the suppliers. The proposed rule does not indicate that physicians can step back from their oversight role in patient care. Although physicians do not need to be in the room or building where services are provided, they must be familiar with the care of their patients. Physicians should review provider service notes after a visit, and there should be an open flow of communication between the provider and the supervising physician to address any issues as early as possible.

Ensuring robust communication between providers will be critical to maintaining quality of care, and many behavioral health facilities may need to evaluate their current systems to ensure that providers can coordinate appropriately. While most of the healthcare industry has transitioned or is transitioning to electronic recordkeeping systems, a June 2022 report by the Medicaid and CHIP Payment and Access Commission (MACPAC) indicated that only 6% of behavioral health facilities health use electronic health records (EHRs). Thus, most behavioral health providers still rely on telephone, paper, or fax to exchange patient information with other providers, which can create barriers to service integration. Behavioral health facilities should consider implementing electronic systems that will allow for smooth and secure transmission of data between multiple providers.

Effective coordination, as well as careful record keeping, is critical to providing quality services and ensuring that providers are properly paid for the services provided. Specifically, the proposed rule changes how physicians supervise support staff, but does not expand the tasks that physicians can delegate to support staff, and the physician is still responsible for billing for services provided under their supervision. Although the proposed rule allows more providers to participate in behavioral health treatment, the provider team must be in sync regarding which services are best for the patient, how records are maintained, and how services are billed.

Public comments on the Proposed Rules may be submitted online or by mail and must be submitted no later than 5:00 p.m. Eastern Time on September 6, 2022.

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