Once again, a well-known consulting organization has mischaracterized the “incident-to” requirements.
A few months ago, I wrote about an article that asserted you can’t bill “incident to” when the patient has a new problem. In that article, I explained why the regulation makes it perfectly clear that all the Medicare Administrative Contractors (MACs) are wrong when they claim one can’t diagnose when billing “incident to.”
Specifically, 42 CFR 410.26(b)(2) says that incident-to may be used “in the course of diagnosis or treatment of an injury or illness.” You don’t “diagnose” old problems, so the only way to interpret that regulation is that it allows a non-physician practitioner to “diagnose” while still billing “incident to” the physician.
The latest article from the same organization does acknowledge that there is a school of thought that the MAC policies asserting that you can’t do diagnosis “incident to” are an “overreach,” before asserting that the article is not the place for that debate. I believe that if an article discussing a rule isn’t the place to analyze its validity, I don’t know what is.
But I am less troubled by this discussion than I am by another more blatant error.
The article correctly states that “incident to services require the direct supervision of the physician from the group.” That is absolutely correct. But it bungles the description of “direct supervision.” The article says the physician must be in the office suite, explaining that “the physician need not be in the room, but must be within the same office.” That perfectly summarizes the rule – as it was more than five years ago.
Prior to the COVID-19 pandemic and the associated public health emergency, it is true that a professional needed to be in the office suite. But in the spring of 2020, the Centers for Medicare & Medicaid Services (CMS) changed the definition of “direct supervision” found at 42 CFR § 410.32(b)(3)(ii) to say that “the presence of the physician or other practitioner includes virtual presence through audio/visual real time communication technology.”
The original extension was only through the year in which the public health emergency ended. But CMS then extended it until the end of 2024, then the end of 2025, and now, as part of the 2026 Physician Fee Schedule, it has made that extension permanent.
A physician need not be in the office suite to provide direct supervision. Availability through a smartphone or other device that is capable of audio/visual communication is sufficient. With that change being over five years old, I would hope that consultants who are selling their expertise to you would have caught up to it by now. But clearly, some have not.
In a situation where two people are disagreeing about the law, it can feel overwhelming. But it shouldn’t. Instead, ask each expert to provide the citation upon which they are relying. Then read them.
If you look at the ECFR site for 42 CFR 410.32(b), you can read the language I’m quoting to you. They haven’t yet updated it with the language from the 2026 Medicare Physician Fee Schedule, so it will look like the definition expires Dec. 31, but you can look at the 2026 Fee Schedule to see the extension.
With that, the error of the consultant’s article should be apparent.
EDITOR’S NOTE:
The opinions expressed in this article are solely those of the author and do not necessarily represent the views or opinions of MedLearn Media. We provide a platform for diverse perspectives, but the content and opinions expressed herein are the author’s own. MedLearn Media does not endorse or guarantee the accuracy of the information presented. Readers are encouraged to critically evaluate the content and conduct their own research. Any actions taken based on this article are at the reader’s own discretion.
Clinical documentation integrity (CDI) professionals work in a variety of settings, and although I mostly focus on topics related to hospital inpatient billing, this week
With so much focus within the federal government on abuse, fraud, and waste, I thought it might be helpful to review a couple of federal
Please log in to your account to comment on this article.
Accurately determining the principal diagnosis is critical for compliant billing, appropriate reimbursement, and valid quality reporting — yet it remains one of the most subjective and error-prone areas in inpatient coding. In this expert-led session, Cheryl Ericson, RN, MS, CCDS, CDIP, demystifies the complexities of principal diagnosis assignment, bridging the gap between coding rules and clinical reality. Learn how to strengthen your organization’s coding accuracy, reduce denials, and ensure your documentation supports true medical necessity.
Denials continue to delay reimbursement, increase administrative burden, and threaten financial stability across healthcare organizations. This essential webcast tackles the root causes—rising payer scrutiny, fragmented workflows, inconsistent documentation, and underused analytics—and offers proven, data-driven strategies to prevent and overturn denials. Attendees will gain practical tools to strengthen documentation and coding accuracy, engage clinicians effectively, and leverage predictive analytics and AI to identify risks before they impact revenue. Through real-world case examples and actionable guidance, this session empowers coding, CDI, and revenue cycle professionals to shift from reactive appeals to proactive denial prevention and revenue protection.
Sepsis remains one of the most frequently denied and contested diagnoses, creating costly revenue loss and compliance risks. In this webcast, Angela Comfort, DBA, MBA, RHIA, CDIP, CCS, CCS-P, provides practical, real-world strategies to align documentation with coding guidelines, reconcile Sepsis-2 and Sepsis-3 definitions, and apply compliant queries. You’ll learn how to identify and address documentation gaps, strengthen provider engagement, and defend diagnoses against payer scrutiny—equipping you to protect reimbursement, improve SOI/ROM capture, and reduce audit vulnerability in this high-risk area.
Only ICD10monitor delivers what you need: updates on must-know changes associated with the FY26 IPPS, including new ICD-10-CM/PCS codes, CCs/MCCs, and MS-DRGs, plus insights, analysis and answers to your questions from two of the country’s most respected subject matter experts.
Stay ahead of the 2026-2027 audit surge with “Top 10 Audit Targets for 2026-2027 for Hospitals & Physicians: Protect Your Revenue,” a high-impact webcast led by Michael Calahan, PA, MBA. This concise session gives hospitals and physicians clear insight into the most likely federal audit targets, such as E/M services, split/shared and critical care, observation and admissions, device credits, and Two-Midnight Rule changes, and shows how to tighten documentation, coding, and internal processes to reduce denials, recoupments, and penalties. Attendees walk away with practical best practices to protect revenue, strengthen compliance, and better prepare their teams for inevitable audits.
As AI reshapes healthcare compliance, the risk of biased outputs and opaque decision-making grows. This webcast, led by Frank Cohen, delivers a practical Four-Pillar Governance Framework—Transparency, Accountability, Fairness, and Explainability—to help you govern AI-driven claim auditing with confidence. Learn how to identify and mitigate bias, implement robust human oversight, and document defensible AI review processes that regulators and auditors will accept. Discover concrete remedies, from rotation protocols to uncertainty scoring, and actionable steps to evaluate vendors before contracts are signed. In a regulatory landscape that moves faster than ever, gain the tools to stay compliant, defend your processes, and reduce liability while maintaining operational effectiveness.
Get clear, practical answers to Medicare’s most confusing regulations. Join Dr. Ronald Hirsch as he breaks down real-world compliance challenges and shares guidance your team can apply right away.
Federal auditors are zeroing in on Inpatient Rehabilitation Facility (IRF) and hospital rehab unit services, with OIG and CERT audits leading to millions in penalties—often due to documentation and administrative errors, not quality of care. Join compliance expert Michael Calahan, PA, MBA, to learn the five clinical “pillars” of IRF-PPS admissions, key documentation requirements, and real-life case lessons to help protect your revenue.
Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →
CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 1 with code CYBER25
CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 2 with code CYBER24
