Chiquita Brooks-LaSure, Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-1770-P
Docket ID: CMS-2022-0113
P.O. Box 8013
Baltimore, MD 21244-1850

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September 6, 2022

RE: CMS-1770-P; CY 2023 Payment Policies Under the Physician Fee Schedule and Other Changes to Part B Payment Policies (Docket ID: CMS-2022-0113)

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Dear Administrator Brooks-LaSure,

CEO Action for Racial Equity (CEOARE) is pleased to provide this submission related to the proposed changes to the calendar year (CY) 2023 Physician Fee Schedule (PFS). We commend you for recognizing the value of telehealth as a modality to help improve disparities and health outcomes for patient populations, as well as your broader efforts to  help identify and address problems related to health equity. As reported in the HHS (Health & Human Services) Report by Samson et al. describing trends in the use of telehealth by Medicare beneficiaries in 2020, there was a 63-fold increase in telehealth visits in 2020 compared to 2019, and behavioral health visits via telehealth showed the largest increase during that same time. As of 2019, there were approximately 3.5 million Black Medicare Fee-for-Service beneficiaries and telehealth utilization among this population was 60 times higher in 2020 compared to 2019.¹,² This significant increase in telehealth visits among Black Medicare beneficiaries demonstrates the importance of this healthcare modality in helping to establish racially equitable access to care.

CEOARE is a Fellowship of over 100 companies that mobilizes a community of business leaders spanning diverse expertise, industries, and geographies, to advance public policy in four key areas — healthcare, education, economic empowerment, and public safety. Our mission is to identify, develop, and promote scalable and sustainable public policies and corporate engagement strategies that help address systemic racism, social injustice, and improve societal well-being and our primary focus is to positively impact the 47+ million Black Americans.

As representatives from the business community, we believe CMS’ work to advance equity across the healthcare ecosystem is critical to the realization of the racial equity we aspire to achieve. Specifically, we offer our support and collaboration on efforts related to health equity in telehealth, notably, CMS’ work to extend telehealth services, expand modalities appropriate for telehealth visits, define appropriate sites for the delivery of telehealth services, and re-orient data to confirm that racial equity concerns are accurately represented.  CEOARE is focused on promoting policies that advance systemic, sustainable improvements that ameliorate the historical disadvantages that have disproportionately impacted Black Americans. CMS’ efforts in this proposed rule to further expand the availability of telehealth presents an opportunity to not only address and bridge racial gaps in healthcare access, but to also develop a more inclusive and socially informed healthcare system for current and future generations. As such,  CEOARE is pleased to provide comments on the proposed CY 2023 PFS.

Our work on advocating for equitable telehealth expansion is guided by our foundational principles:

• ENDORSE the elimination of inequitable restrictions and barriers to coverage for inclusive telehealth services,
• PROMOTE and AMPLIFY research that demonstrates the impact of telehealth expansion on Black patients,
• Collaborate with and ADVOCATE for the Black community to enable culturally competent, user-centered telehealth design and implementation, and
• EDUCATE and ENGAGE patients and providers on digital health literacy, which helps foster adoption, trust, and accountability.

Comments on the Proposed Physician Fee Schedule

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I.D.1.d. Services Proposed for Removal From the Medicare Telehealth Services List After 151 Days Following the End of the PHE (Public Health Emergency)

PROPOSAL: Alignment with the Consolidated Appropriations Act, 2022 (CAA, 2022) – Continue to include on the Medicare Telehealth Services List the services that are currently set to be removed when the PHE ends (that is, those not currently added to the list on a Category 1, 2, or 3 basis) for an additional 151 days after the PHE ends.

RESPONSE:  CEOARE supports CMS’ alignment with the CAA, 2022 by retaining the temporary waiver-based services added to the Medicare Telehealth Services List for an additional 151 days after the end of the PHE. This extension allows for time to collect and evaluate these services for their effectiveness in improving patient outcomes and can contribute to claims-based, evidence-informed decision making, and coverage decisions. We also urge CMS to permanently maintain the Category 3 framework after the end of CY 2023. In so doing, CMS would provide a pathway to permanence for telehealth services the agency believes require additional evidence. Furthermore, a permanent Category 3 framework would create an avenue for CMS to proactively collect telehealth utilization data from providers and patients across various geographic factors and medical specialties. This data could then be stratified by race, ethnicity, and socio-economic factors to better meet the needs of vulnerable and medically underserved populations, including Black communities. CMS could further leverage any available insights pertaining to social determinants of health metrics to develop the evidence needed for adding services to the Telehealth services list on a permanent basis. Applying racial equity and social determinants of health lenses to CMS’ telehealth service policy determination aligns with the goals articulated in the Health Equity Pillar of CMS’ Strategic Plan.

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I.D.1.e. Implementation of Telehealth Provisions of the Consolidation Appropriations Acts, 2021 and 2022

PROPOSAL: Implement provisions of section 1834(m) of the [Social Security Act] (including the amendments made by the CAA, 2021) and provisions of the CAA, 2022 that extend certain Medicare telehealth flexibilities adopted during the PHE for 151 days after the end of the PHE.

RESPONSE: General policy position on CAA, 2021:  CEOARE supports the language in the CAA, 2021 to remove Medicare restrictions on mental health services delivered virtually, but we believe the inclusion of the six-month in-person requirement presents a significant barrier to access within vulnerable and medically underserved communities. We encourage CMS to interpret the statute as broadly as possible to avoid implementing policies that unintentionally create unnecessary access barriers for already vulnerable populations. While we agree that in-person care is valuable and should be facilitated, when possible, we believe that equitable access to quality care should be a policy priority.

We recognize and appreciate CMS’ response to the law in delaying the implementation of these requirements until after the 151-day period. While we acknowledge CMS’ limited authority regarding the specific requirements under the current law, we ask CMS not to impose additional barriers to care beyond those that have been legally defined.

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I.D.1.f. Use of Modifiers for Medicare Telehealth Services Following the End of the PHE for COVID-19

PROPOSAL: Beginning January 1, 2023, a physician or other qualified health care practitioner billing for telehealth services furnished using audio-only communications technology shall append CPT modifier “93”.

RESPONSE: We support CMS’ proposal to use the CPT modifier “93” to indicate audio-only services across sites of care for consistency, as well as for critical tracking of utilization to inform evidence-based decision-making. Audio-only is a critical means of access to beneficiaries who lack adequate connectivity, devices, or digital literacy to support a live audio-visual visit. Addressing issues related to reliable broadband, digital literacy, and other elements of the digital divide are critical steps in bridging telehealth access gaps. We encourage CMS, in collaboration with other federal agencies and departments, to implement policies and programs that help mitigate existing structural and systemic barriers to expand access for medically underserved communities. The digital divide is heavily interwoven with issues of race, education, and poverty. Affordability and access to the internet is a legacy problem that disproportionately affects Black Americans. As highlighted in the HHS Report assessing telehealth trends in utilization of audio vs. video services, Black individuals were among those with the highest rates of telehealth visits, but lowest rates of video use.³ We urge CMS to explore all available options, including collaboration with Congress, other agencies, and stakeholder groups, to develop appropriate policies to enable permanent support for audio-only telehealth across disease states.

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Conclusion

CEOARE applauds CMS’ centering of health equity within their strategic plan and appreciates the opportunity to comment on proposed changes, relevant to telehealth access and medically underserved communities, within the CY 2023 PFS Proposed Rule.  Health inequities have had a disproportionate impact on Black Americans, and as Healthcare Provider Shortages continue to rise, we strongly believe that telehealth serves as a vital tool to bridge disparities in access to care.  Bose et al. demonstrated in their analysis of Medicare data, that coverage of telehealth through the waiver increased access for all Medicare beneficiaries, but also highlighted the need for a targeted approach to enhance access.⁴  As CMS evaluates more consistent, predictable approaches to the PFS, we commend the centering of health equity as a guiding principle for the implementation of access to telehealth access in future regulatory decisions. 

Thank you for the opportunity to provide comments and highlight the importance of affordable access to modernized healthcare for Black Americans.  We recognize this proposed rule as part of a broader administration-wide strategy to create a more equitable health system that can result in better accessibility, quality, affordability, and innovation and we look forward to the opportunity to serve as a resource on these issues. If you have any questions, please do not hesitate to contact Roz Brooks via email at roslyn.g.brooks@ceoactionracialequity.com.

Sincerely,

CEO Action for Racial Equity

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Citations

[1] Samson LW, Tarazi W, Turrini G, Sheingold S. Medicare beneficiaries’ use of telehealth in 2020: trends by beneficiary characteristics and location [Internet]. Washington (DC): Department of Health and Human Services,  Office of the Assistant Secretary for Planning and Evaluation; 2021 Dec [cited 2022 July 6]. Available from: https://aspe.hhs.gov/sites/default/files/documents/a1d5d810fe3433e18b192be42dbf2351/medicare-telehealth-report.pdf

[2] Tarazi W, Welch P, Nguyen N, Bosworth A, Sheingold S, De Lew N, Sommers BD. Medicare Beneficiary Enrollment Trends and Demographic Characteristics. [Internet]. Washington (DC): Department of Health and Human Services,  Office of the Assistant Secretary for Planning and Evaluation; 2022 Mar [cited 2022 August 24]. Available from: https://aspe.hhs.gov/sites/default/files/documents/f81aafbba0b331c71c6e8bc66512e25d/medicare-beneficiary-enrollment-ib.pdf

[3] Karimi M, Lee EC, Couture SJ, Gonzalez A, Grigorescu V, Smith SR, et al. National survey trends in telehealth use in 2021: disparities in utilization and audio vs. video services [Internet]. Washington (DC): Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation; 2022 Feb 1 [cited 2022 July 6]. Available from: https://aspe.hhs.gov/reports/hps-analysistelehealth- use-2021

[4] Bose S, Dun C, Zhang GQ, Walsh C, Makary MA, Hicks CW. Medicare Beneficiaries In Disadvantaged Neighborhoods Increased Telemedicine Use During The COVID-19 Pandemic. Health Aff (Millwood). 2022;41(5):635-42.