On November 1, 2022, the Centers for Medicare & Medicaid (CMS) under the United States Department of Health and Human Services (HHS) finalized changes that are projected to significantly expand access to behavioral health care services, among other things. CMS released a Behavioral Health Strategy in 2022, which included improving access to and quality of mental health care services.[1] The Calendar Year (CY) 2023 Physician Fee Schedule (PFS) final rule includes changes that better align with the initiatives of the Biden Administration and CMS, namely addressing the current mental health crisis by using what the agency is calling “whole-person” support and services through Medicare.[2] The final rule’s focus on “whole person” care places the healthcare system on a better trajectory to provide high-quality, affordable care and achieve equitable outcomes. Further, the 2023 PFS final rule ensures that individuals receive coordinated care with adequate access to prevention and treatment services for substance use, mental health services, crisis intervention, and pain care.[3] Here are some of the ways the final rule supports whole-person care:
- Behavioral Health Clinicians to Work under the General Supervision of Medicare Practitioners
Currently, Medicare beneficiaries greatly need improved access to behavioral health services. Over the past few years, CMS has been considering regulatory revisions to reduce barriers to care and to better utilize behavioral health professionals, including Licensed Marriage and Family Therapists (LMFTs) and licensed professional counselors (LPCs). Through the promulgation of the final rule, CMS is adding an exception to the direct supervision requirement under the “incident to” regulation at 42 CFR 410.26, which will allow diagnosis and treatment of a mental health or substance use disorder to be furnished by auxiliary personnel under the “general supervision” of a physician or non-physician practitioner (NPP) rather than under direct supervision.
This exception aligns with the 2022 Behavioral Health Strategy by strengthening and broadening accessibility for Medicare beneficiaries to receive critical behavioral health treatments and services from LPCs and LMFTs (among other behavioral health clinicians). It also mobilizes behavioral health workers to practice to the full extent of their license, even without a doctor or nurse practitioner physically present. Further, CMS is making permanent a rule from the public health emergency to allow clinical staff of hospital outpatient departments to provide remote behavioral health services to patients in their homes. Due to these changes under the final rule, behavioral health services like counseling and cognitive therapy will become more accessible in rural or underserved areas.
- Medicare to Reimburse Programs for Opioid Addiction and Treatment
In further alignment with the 2022 Behavioral Health Strategy, the final rule improved behavioral health services and opioid use disorder treatment. To better reflect the costs of individual therapy services, CMS is increasing payment rates to Opioid Treatment Programs. To expand access in rural and other underserved areas, CMS clarifies in the final rule that Opioid Treatment Programs can bill for opioid use disorder treatment services provided through mobile units, such as vans, following Substance Abuse and Mental Health Services Administration (SAMHSA) and Drug Enforcement Agency (DEA) guidance. This clarification will improve treatment access for less-reachable populations, such as those in rural communities or the homeless. Medicare will also begin paying for Opioid Treatment Programs utilizing telecommunications with patients to initiate treatment with buprenorphine. Based on feedback from the proposed rule, the final rule offers payment to Opioid Treatment Programs for periodic assessments provided over audio-only telephone calls until the end of 2023.
- Medicare to Pay for Behavioral Health Clinicians as Part of a Primary Care Team
Care integration has been another desired improvement for behavioral health services. CMS iterated the intent to “increase detection, effective management, and/or recovery of mental health conditions through coordination and integration between primary and specialty care providers.”[4] Determined to offer a “whole-person” care model, final rule policies will pay clinical psychologists and licensed clinical social workers to provide incorporated behavioral health services as part of a primary care team in addition to their own services. This coordination and integration of specialty care through existing primary care provider networks are designed to ease the process of receiving behavioral health services for Medicare beneficiaries.
Due to the increased need for mental health services along with feedback from previous PFS rulemaking, CMS is implementing a new General BHI code describing a service personally performed by clinical psychologists or clinical social workers to account for monthly care integration where the behavioral health services furnished by these clinicians serve as the focal point of care integration. This is an improvement for behavioral health services because CMS did not previously allow professionals such as clinical psychologists or clinical social workers to report the approved initiating visit codes to Medicare. CMS is also completing a revised policy to allow a psychiatric diagnostic evaluation to be the initial visit for the new general BHI service.
- Medicare to Pay for Treatment and Management of Chronic Pain
In employing the “whole-person” approach, Medicare will provide a new monthly payment for comprehensive treatment and management services for patients with chronic pain. Although Medicare has not historically utilized a comprehensive team-based approach to chronic pain and pain management, CMS acknowledges that person-centered coordination between providers is often needed to manage pain to maximize positive outcomes. This will be the first time Medicare provides payments for this team-based, comprehensive treatment to chronic pain management.
- Medicare Shared Savings Program to Provide High-Quality Behavioral Health Care
Medicare serves a critical function in implementing person-centered behavioral health care, as evidenced by the fact that there are almost $1 trillion in claims covering over 63 million Americans.[5] The Shared Savings Program strengthens the whole-person capabilities of Accountable Care Organizations (ACOs) by making advanced shared savings payments to smaller and newer ACOs, which in turn can use the funds upfront to onboard behavioral health practitioners. Finally, CMS intends to address payment for new codes that describe caregiver behavioral management training in CY 2024 rule-making. For future policies, CMS is also looking for ways to further mobilize the behavioral health workforce by providing the ability to connect with people in different ways, such as intensive management in community settings. The 2023 PFS final rule, which strives to create a more equitable healthcare system that results in greater accessibility, quality, affordability, and innovation, takes effect on January 1, 2023.
For more information about the Behavioral Health Final Rule, click here.
For more information about the Medicare 2023 Physician Fee Schedule, click here.
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About the Authors:
Gregory Moore is a Member in Dickinson Wright’s Troy office. He can be reached at 248-433-7268 or gmoore@dickinsonwright.com. His biography can be accessed here.
Allison Tuohy is a Law Clerk in Dickinson Wright’s Troy office. She can be reached at 248-433-7505 or atuohy@dickinsonwright.com. Her biography can be accessed here.
[1] CMS Behavioral Health Strategy, Centers for Medicare & Medicaid, https://www.cms.gov/cms-behavioral-health-strategy.
[2] National Tour to Strengthen Mental Health, United States Department of Health and Human Services (HHS), https://www.hhs.gov/hhstour/index.html#:~:text=Following%20President%20Joe%20Biden’s%20State,youth%20mental%20health%2C%20and%20suicide.
[3] HHS Finalizes Physician Payment Rule Strengthening Access to Behavioral Health Services and Whole-Person Care, Press Release, Centers for Medicare & Medicaid (Nov. 1, 2022), https://www.cms.gov/newsroom/press-releases/hhs-finalizes-physician-payment-rule-strengthening-access-behavioral-health-services-and-whole.
[4] CMS Behavioral Health Strategy, CMS, https://www.cms.gov/cms-behavioral-health-strategy.
[5] CMS, supra note 3.