2021 PFS Final Rule: More Details for Anesthesia and Chronic Pain

Summary:  There are several new rules for 2021 that either directly or peripherally involve the practice of anesthesia or interventional pain. This article lists some of the provisions found in the 2021 Medicare PFS Final Rule that will be of interest to many of our readers.

In previous weeks, we have attempted to summarize for you some of the key provisions of the 2021 Medicare Physician Fee Schedule (PFS) Final Rule and subsequent legislation (e.g., Consolidated Appropriations Act) that will have a direct impact on anesthesia and chronic pain practices over the course of this year. We've brought to the attention of our readers new rules concerning such topics as telehealth, coding and conversion factors. The purpose of today's article is to share some additional regulatory changes on tap for 2021, based, in part, on a PFS summary issued by the Centers for Medicare and Medicaid Services (CMS).

Virtual Supervision

For the duration of the COVID-19 public health emergency (PHE), CMS has adopted a revision to the definition of direct supervision, which will now include the virtual presence of the supervising physician or practitioner using interactive audio/video real-time communications technology (85 FR 19245). This temporary allowance was based on a desire to limit potential infection exposure to the patient or practitioner and will run through the later of (a) the end of the calendar year in which the PHE ends, or (b) December 31, 2021.

Though we briefly touched on this in a previous article, it is important to note that this temporary provision should have a positive impact on chronic pain practices where, prior to this rule change, the physician or nurse practitioner (NP) supervisor was required to be present in the same location as the staff member at the time of such member's participation in any E/M service, for example. Now, this supervision can be done virtually.

Finally, it should be reiterated that this particular provision deals with direct supervision. This is not a reference to "medical supervision" or "medical direction"—which are anesthesia-specific terms of art. Rather, it is the type of supervision that an RN, for example, would be under in a physician's clinic.

Supervision of Diagnostic Tests by NPPs

The Final Rule has finalized and made permanent a proposal that will allow certain non-physician practitioners (NPPs) to supervise the performance of diagnostic tests within their scope of practice and state law. The affected NPPs are as follows:

• ⚈ Nurse practitioners (NPs)
• ⚈ Clinical nurse specialists (CNSs)
• ⚈ Physician assistants (PAs)
• ⚈ Certified nurse-midwives (CNMs)
• ⚈ Certified registered nurse anesthetists (CRNAs)

These NPPs must maintain the required statutory relationships under Medicare with their supervising or collaborating physicians.

Medical Record Documentation

The 2021 PFS Final Rule contains clarifications to changes that were included in the 2020 Final Rule as it concerns medical record documentation. According to CMS, "physicians and NPPs, including therapists, can review and verify documentation entered into the medical record by members of the medical team for their own services that are paid under the PFS."

The 2021 Final Rule went on to clarify that "therapy students, and students of other disciplines, working under a physician or practitioner who furnishes and bills directly for their professional services to the Medicare program, may document in the record so long as the documentation is reviewed and verified (signed and dated) by the billing physician, practitioner, or therapist."

Teaching Physicians and Residents

The Final Rule has also finalized new options in the teaching setting. Specifically, teaching physicians will now be allowed to use interactive, real-time audio/video technology to interact with a resident as one method of meeting the requirement that they be present for the key portion of the service. This option applies specifically to "residency training sites of a teaching setting that are outside of a metropolitan statistical area (MSA)." It should also be noted that this virtual presence option is available to the teaching physician during Medicare telehealth services.

For residency training sites of a teaching setting that are outside of an MSA, the 2021 PFS Final Rule allows teaching physicians at primary care centers to provide the necessary direction, management and review for the resident's services using interactive, real-time audio/video communications technology. The CMS PFS summary states that, "for these sites, residents furnishing services at primary care centers may furnish an expanded set of services to beneficiaries, including communication technology-based services and inter-professional consults."

Our readers should be aware that these new options will NOT apply in the following situations:

• ⚈ Surgical, high risk, interventional, or other complex procedures
• ⚈ Services performed through an endoscope
• ⚈ Anesthesia services

The CMS PFS summary further stipulates that "the medical record must clearly reflect how the teaching physician was present to the resident during the key portion of the service." In other words, the record should reflect whether the teaching physician's presence was "physical" or "virtual" during the key portion of the service.

The 2021 PFS Final Rule also addresses a resident's "moonlighting" options. The Rule permanently expanded the settings in which residents may moonlight "to include the services of residents that are not related to their approved GME programs and which are furnished to inpatients of a hospital in which they have their training program." When in moonlighting mode:

[T]he medical record must show
that the resident furnished identifiable physician services that meet the
conditions of payment of physician services to beneficiaries in providers in
§ 415.102(a); that the resident is fully licensed to practice medicine,
osteopathy, dentistry, or podiatry by the State in which the services are
performed; and that the services are not performed as part of the approved GME
program.

It will be up to the resident to provide such documentation, regardless of hospital setting, when he/she is performing services as a physician that are not subject to his/her residency program.

Drug Prescription

Pursuant to section 2003 of the SUPPORT Act, which requires that the prescribing of a Schedule II, III, IV, or V controlled substance under Medicare Part D be done electronically in accordance with an electronic prescription drug program (subject to any exceptions), the 2021 PFS Final Rule requires prescribers to use the National Council for Prescription Drug Programs, (NCPDP) SCRIPT 2017071 standard for electronic prescribing of controlled substances (EPCS) prescription transmissions.

According to the CMS PFS summary, this Rule has "an effective date of January 1, 2021 and a compliance date of January 1, 2022 to encourage prescribers to implement EPCS as soon as possible."

If you have questions about how the above provisions may impact your practice, please reach out to your account executive or contact us at info@anesthesiallc.com.