Hoping CMS’ Proposed ACO Rules Get Better

Recently, CMS (the Centers for Medicare and Medicaid Services) released a proposal of new rulemaking asking for comments on easing “telehealth” requirements for ACOs (Accountable Care Organizations). You can find a wonderful press release here from the ATA (American Telemedicine Association), who was instrumental in getting CMS to reconsider their earlier rules.

Having reviewed the proposal, I had to remind myself that CMS (and, ultimately, the Department of Health and Human Services) is to actually very committed to enabling greater adoption of telehealth, and that their final rules have historically been heavily modified from their proposals. Having said that–and I’m no doctor or lawyer–but I felt this proposal to use waivers rather than simply waiving antiquated requirements just adds red tape where there shouldn’t be any. Does anyone else get that sense?

First, a quick statement of why starting with Medicare is so important: Not only does Medicare enroll over 50 million beneficiaries, but also, as Medicare does, many other payers will follow. Beginning with Medicare also provides peace of mind for many care providers. When care providers are unsure what code to use to bill for a procedure, they may also wonder whether that procedure is legitimate. If CMS has provided a specific code for the procedure, it provides peace of mind for the provider, even if the patient isn’t a Medicare beneficiary.

The first thing that gives me pause in this proposed (“Must remember it’s not the final,” I tell myself) rulemaking is that what I’m calling the “mission statement”1 within the document leaves out ongoing outpatient data collection (monitoring) for the providers and continuing care for the beneficiaries. In fact, earlier, CMS mentions how “an ACO must establish processes to…promote patient engagement” but then to “coordinate care across and among primary care physicians, specialists and acute and postacute providers and suppliers” but not patients.

The proposed rulemaking IS a tremendous step forward, so it’s likely CMS simply forgot that patient outcomes are better when the patients are involved. Remote monitoring has already been shown to improve outcomes and lower costs, especially in the area of readmissions. CMS does note on page 76 that, “Some ACOs have already reported that they are actively using telehealth services to improve care for their beneficiaries,” right after stating, “…ACOs have flexibility to use telehealth services as they deem appropriate for their efforts to improve care and avoid unnecessary costs.” Seeing the connection between those two sentences, especially as they were one after another, I thought it a little strange they then close the paragraph asking, “If a particular technology is necessary, under what circumstances?”

A fair enough question…and one that’s been answered:

“When the patient is unable to come into the facility,” is an answer that immediately comes to mind for nearly all telehealth technologies. Or any of the following: “When there is no necessity for the patient to come into the medical facility.” “When the costs associated with bringing the patient/beneficiary into the facility are higher than allowing them to participate from their location and there is no demonstrable risk in this.” “When patients will benefit from more frequent interaction with caregivers than a physical presence would allow and with greater trust and engagement than a phone call allows.” And finally: “Whenever better patient outcomes at lesser cost is desired.”

As noted when the current rules went into effect three years ago, the point of establishing ACOs was to give them the latitude to do what they deemed best for improving patient care while simultaneously reducing cost. However, they were restricted from being reimbursed for telehealth for non-rural patients, “store-and-forward” technologies (What? Seriously? It’s 2014!), remote consultations, therapies, and rehabilitations, and certain locations that the patient beneficiaries are located in (“originating sites”). Many of the ACOs that have implemented these technologies despite the restrictions (some of which have been lessened through intermediary rulemakings) because the technologies have been best for both the beneficiaries and the ACOs.

Regarding telehealth, the new proposed rules feel contradictory in intent. On the one hand, they practically force ACOs that have not already jumped on the telehealth / telemedicine train to get on board. They will need to 1) describe how it will “encourage and promote the use of enabling technologies” (including telehealth) and 2) provide milestones and assess progress. On the other hand, after doing a wonderful job reminding providers that many procedures don’t actually require a waiver in the first place if reported correctly (page 230) and agreeing that removing the originating site requirements is probably a good idea (page 231), they state they don’t intend to simply waive the requirements. Instead, ACOs must receive waivers for particular beneficiaries. This will apparently require filling in a form for each “waiver” and essentially providing documentation and arguments that appear to be redundant with other Shared Savings Plan requirements (pages 232 and 233). I would like a fuller explanation from CMS as to why they, “…believe it would be appropriate to limit the use of such waivers…”. Does the need for a waiver come from using the term “a waiver” rather than “waiving” when discussing why removing these restrictions would be good for everyone? For example: “ACOs and other commenters have suggested that a waiver of certain Medicare telemedicine requirements would help…” or “A waiver of certain Medicare telehealth requirements could be supported by…”. In both cases, I believe “waiving” would have proven better for medicine. Did the ACOs really ask if they could receive waivers for a specific beneficiary population?

About the only additional monitoring requirement I can really get behind at my current level of understanding is that CMS would like to monitor the marketing of the waivered telemedicine services. It is certainly possible for ACOs to market new services in a way that may be misleading or coercive.

Still, it’s great that CMS is willing to look for ways to enable greater telehealth and adoption. I encourage you to read the relevant sections of the proposed rulemaking and submit comments to CMS. The ACO program as a whole has been performing very well and seeing significantly improved outcomes along with significant savings. I hope that will continue after the final rules are released.

1  “We continue to believe that ACOs should coordinate care between all types of providers and across all services, and that the secure, electronic exchange of health information across all providers in a community is of the utmost importance for both effective care coordination activities and the success of the Shared Savings Program.”