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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations
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continue to evaluate them as part of our measure monitoring and evaluation process. We believe that the evidence cited in our proposal, including the evidence supporting the APA grade of I applied to the 2010 guidelines for the treatment of SUD patients that state It is important to intensify the monitoring for substance use during periods when the patient is at a high risk of relapsing, including during the early stages of treatment, times of transition to less intensive levels of care, and the first year after active treatment has ceased 150 is sufficient evidence to support measuring follow up after hospitalization for SUD. We note that because discharge from an IPF is a time of transition to less intensive levels of care these guidelines apply to discharge from an IPF and support the expanded patient cohort.
Comment: One commenter requested CMS specifically consider the impact of the physician self-referral law commonly referred to as the Stark Law on an IPFs ability to ensure necessary SUD follow-up care. Some commenters recommended that CMS
evaluate additional risk adjustment for social risk factors. One commenter further expressed that this measure may not be a successful strategy for reducing readmissions. Another commenter recommended that CMS investigate whether FAPH is an appropriate replacement for the Alcohol & Other Drug Use Disorder Treatment Provided or Offered at Discharge and Alcohol &
Other Drug Use Disorder Treatment at Discharge SUB3/3a measure.
Response: Section 1877 of the Act, also known as the physician self-referral law: 1 Prohibits a physician from making referrals for certain designated health services payable by Medicare to an entity with which he or she or an immediate family member has a financial relationship, unless an exception applies; and 2 prohibits the entity from filing claims with Medicare or billing another individual, entity, or third party payer for those referred services. A financial relationship is an ownership or investment interest in the entity or a compensation arrangement with the entity.151 We believe that the comment regarding the physician selfreferral law relates to compensation arrangements between IPFs which qualify as hospitals, and entities, for purposes of the physician self-referral 150 American Psychiatric Association. Practice guideline for the treatment of patients with substance use disorders. 2010. http
psychiatryonline.org/pb/assets/raw/sitewide/
practice_guidelines/guidelines/substanceuse.pdf.
151 https www.cms.gov/medicare/fraud-andabuse/physicianselfreferral.

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law and physicians who provide postdischarge SUD follow-up care that may implicate the physician self-referral law.
To the extent an IPF enters into a compensation arrangement with a physician who provides SUD follow-up care to patients discharged from the hospital, we note that there are exceptions to the physician self-referral law applicable to such compensation arrangements, including recently finalized exceptions for value-based arrangements.
We will consider this measure for potential risk adjustment or stratification as we seek to close the equity gap as described in section IV.D
of this final rule. We note that a reduction in readmissions is this measures objective, though improved follow-up adherence may serve to reduce readmissions because of improved continuity of care. Finally, we will evaluate whether the FAPH
measure is an appropriate replacement for Alcohol & Other Drug Use Disorder Treatment Provided or Offered at Discharge and Alcohol & Other Drug Use Disorder Treatment at Discharge SUB3/3a.
Comment: Some commenters requested clarification regarding visits that would be considered post-discharge follow-up. Some commenters requested clarification regarding whether telehealth visits, specifically audio-only telehealth visits, would be considered follow-up for purposes of the measure.
A few commenters requested clarification regarding whether visits implemented through collaborative agreements with mental health providers would be considered followups. These commenters further observed that including these visits would incentivize community partnerships.
One commenter requested clarification regarding whether a visit to any HCP
including physicians, clinics, etc.
would be considered follow-up for purposes of the measure. This commenter further requested clarification regarding whether specific diagnosis codes would be required to be present on the follow-up claim.
Response: Regarding the request for clarification about the eligibility of telehealth visits for FAPH measure, both in-person and telehealth outpatient visits are acceptable, including audioonly visits. The FAPH numerator defines qualifying outpatient visits as outpatient visits, intensive outpatient encounters or partial hospitalizations that occur within 7 or 30 days of discharge and are defined by the Current Procedural Terminology CPT, Healthcare Common Procedure Coding System HCPCS, and Uniform Billing
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UB Revenue codes, with or without the GT telehealth modifier. The CPT
codes 99441, 99442, and 99443, which represent telephone E/M visits, are included in the list of codes to identify eligible outpatient visits. With respect to the request for clarification regarding collaborative agreements, the measure is agnostic to relationships between mental health providers, other providers, and health systems. The codes used to identify outpatient visits for the FAPH measure are not limited to mental health providers. The outpatient visit may be any outpatient visit, intensive outpatient encounter or partial hospitalization that occurs within 7 or 30 days of discharge as defined in section IV.E.3.b.1. This visit must be paired with a qualifying ICD10CM
diagnosis of mental illness or substance use disorder used to define the denominator.
Comment: One commenter observed that historical trending would no longer be available due to the transition from FUH to FAPH.
Response: We agree with the commenter that replacing FUH with FAPH would mean that historical trending would no longer be available.
However, we believe that the benefits associated with the expanded patient population and the expanded provider types for follow-up appointments outweigh the loss of trend data.
After consideration of the public comments, we are finalizing the FAPH
measure as proposed for the FY 2024
payment determination and subsequent years.
F. Removal or Retention of IPFQR
Program Measures 1. Background In the FY 2018 IPPS/LTCH PPS final rule 82 FR 38463 through 38465, we adopted considerations for removing or retaining measures within the IPFQR
Program and criteria for determining when a measure is topped out. In the FY 2019 IPF PPS final rule 83 FR 38591
through 38593, we adopted one additional measure removal factor. We did not propose any changes to these removal factors, topped-out criteria, or retention factors and refer readers to the FY 2018 IPPS/LTCH PPS final rule 82
FR 38463 through 38465 and the FY
2019 IPF PPS final rule 83 FR 38591
through 38593 for more information.
We will continue to retain measures from each previous years IPFQR
Program measure set for subsequent years measure sets, except when we specifically propose to remove or replace a measure. We will continue to use the notice-and-comment rulemaking
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