December 21, 2018
Centers for Medicare & Medicaid Services
Department of Health and Human Services
P.O. Box 8013
Baltimore, MD 21244–8013
PATH, the Partnership for Artificial Intelligence, Automation and Robotics in Healthcare, is pleased to provide these comments about the proposed rules for 2020 Medicare Advantage and Part D Flexibility. We seek an openness to health care innovation and are interested in the range of technology tools that can be used to transform health care to improve ultimately patient care. PATH supports public policy that is accommodating or neutral about the use of emerging technology. PATH’s members, including health systems, technology companies, payors and individuals, support policies that allow the convergence of technologies to create new forms of service, to improve patient outcomes, expand delivery to individuals outside of medical institutions, and to make healthcare more productive and efficient.
The package of Medicare improvements developed over several years by the U.S. Senate Committee on Finance as the CHRONIC Act and ultimately enacted as part of the Bipartisan Budget Act of 2018 will be landmark in the innovation of Medicare health services and operations. Notably, section 50323 of the final Act is the most significant advance for Medicare telehealth since 2000, when these benefits were essentially enacted.
We are supportive of the proposed rules but have several recommendations for their improvement.
Specific PATH recommendations on proposed rules
- A major orientation to section 50323 was to remove artificial barriers to the Medicare coverage of telehealth and artificial distinctions with in-person care — to treat in-person and telehealth similarly. PATH strongly supports paragraph 422.135(b) regarding the general rule for additional telehealth benefits, as this closely follows the statutory language.
- It is fitting under Medicare Advantage to allow a plan’s choices as to what is clinically appropriate to furnish through electronic exchange. PATH urges two modifications for paragraph 422.135(a)(2):
- To provide more certainty, add the sentence of the preamble specifically citing common examples while allowing other similar technology:
Examples of electronic information and telecommunications technology (or ‘‘electronic exchange’’) may include, but are not limited to, the following: Secure messaging, store and forward technologies, telephone, videoconferencing, other internet-enabled technologies, and other evolving technologies as appropriate for non-face-to-face communication. (83 FR 54988)
4. To prevent plan jeopardy, add a sentence to preclude retroactive actions by the agency.
There are a few proposals not supported by the statute nor evidence of a problem cited by the agency. Further, they are not consistent with the nature of Medicare Advantage plans assumption of full financial risk for commensurate clinical flexibility. PATH recommends that these proposals not be finalized, at least at this time:
- Paragraph 422.135(d) regarding a restriction to use only contracted providers for telehealth services: This proposed requirement would be new and was not specified by statute. Further, it appears contrary to Congressional intent and the nature of the Medicare Advantage program. Medicare Advantage plans should be able to use all presently allowed means to secure provider participation as they have done for telehealth services and do for in-person care.
- Paragraph 422.135(f) allowing different patient cost sharing for telehealth services from the same service provided on an in-person basis: Since reimbursement is to be the same for a service, whether provided in-person or by telehealth, under Social Security Act section 1834(m)(2)(A), differential cost sharing for the same service appears unwise. It would be contrary to removing artificial barriers and unproductive distinctions for a specific service.
- Paragraph 422.135(c)(5) allowing agency requests for information about a plan’s additional telehealth benefits: We are concerned this extraordinary requirement could easily deter plans from the goal of increasing telehealth offerings and innovating services. The agency has had sufficient authority, means and time to make improvements to the regulation and/or guidance regarding additional telehealth benefits.
Additional comments sought
In respond to two issues for which the agency seeks comment, PATH makes the following recommendations:
- Covered services: PATH strongly recommends that the agency not place any new limitations, at this time, on Medicare Advantage plans about what types of Part B items and services can be additional telehealth benefits.
Additionally, PATH recommends that Medicare Advantage plans be able to allow as telehealth providers federally-qualified health centers, rural health clinics, and community mental health centers. In part, this would enable such entities to network and specialize for the provision of covered telehealth services. Presently, these entities are only authorized to the originating (patient) site for Medicare telehealth.
- Provider qualifications: PATH strongly recommends that the agency not impose any new requirements (barriers) for qualifications of telehealth providers.
With the nature of the value-based incentives of the Medicare Advantage program and the growing number of beneficiaries choosing value-based care over fee-for-service, section 50323 and other Act provisions have the potential, especially in combinations, to be the most transformative for the future of the Medicare program.
Finally, with the developments in artificial intelligence, automation and robotics for patient care and the approval for many of these new innovations by of FDA, PATH urges CMS start considering how it can support these innovations and their impact on the quality of care, expanded access and increased productivity and efficiency in the healthcare delivery system. Coupled with telemedicine, they can serve to revolutionize healthcare delivery. PATH is happy to work with CMS as it explores this exciting area.
Jonathan D. Linkous
Chief Executive Officer