Interim CMS Rule Changes Key Definition for Telehealth Billing Purposes

A key difference exists in the teaching physician rule.

As part of the Centers for Medicare & Medicaid Services’ (CMS’s) attempt to permit professionals to provide care remotely, they’ve made changes to some supervision rules, including supervision of services that are incident to a physician’s work and the teaching physician rules.

Let’s start with the incident-to rules. I’ve always found the term confusing. It refers to services that are performed under the direction of a physician, but the Medicare statute calls them an “incidental part” of the physician’s work. The incident-to rule relies on the definition of “direct supervision” found in the diagnostic test rule, 42 CFR § 410.26. It says “a physician must be present in the office suite and immediately available to furnish direction throughout the performance of a procedure. It does not mean that the physician must be present in the room when the procedure is performed.” 

The new interim rule changes the definition of “present.” During the public health emergency, “the presence of the physician includes virtual presence through audio/video real-time communication technology when the use of such technology is indicated to reduce exposure risks for the beneficiary or healthcare provider.” The obvious question is whether the link must be open during the service. It seems quite clear that the answer is “no.” If the supervising physician is available, that should be sufficient. I will acknowledge that the regulation isn’t crystal clear. But if the physician had to watch the entire encounter live, that would be placing a higher supervision requirement during the emergency than existed previously. While it would have been clearer to explicitly state that the physician must be immediately available through audio/video real-time communication, that is the import of the change. The incident-to regulation has two requirements, “presence” and “immediate availability.” CMS is changing the definition of “presence,” while leaving “immediate availability” unchanged. Availability by smartphone is enough.

But the teaching physician rule is very different. Currently, the rule, found at 42 CFR § 415.172, requires that “if a resident participates in a service furnished in a teaching setting, the physician fee schedule payment is made only if the teaching physician is present during the key portion of any service or procedure for which payment is sought.” The new addition to the regulation says that if the teaching physician “is present during the key portion of the service using interactive telecommunications technology,” the presence requirement is met.  (The rule defines “interactive telecommunication” as “multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and distant-site physician or practitioner.”) Under the teaching physician rule, availability is insufficient. A teaching physician has to be watching real-time on the interactive telecommunication during the key components. In essence, this will allow a teaching physician who is quarantined to supervise residents, but it will not allow residents and supervising physicians to run parallel rooms.

CMS is, however, expanding the so-called primary care exception. Historically, residents could only provide up to a Level 3 service in these primary care centers. During the crisis, CMS will allow the residents to provide Level 4 and 5 services as well.

I want to stress that the teaching physician rule doesn’t limit what residents can do; it only affects what can be billed. The resident can provide services without the supervising physician being present, but you can’t bill Medicare for it. In order to bill Medicare, the teaching physician must be present. You might be able to bill private payors (and even Medicaid, in many states) for a resident’s services. The Medicare restriction exists because Medicare pays for a resident’s time. Now, a physician can supervise from afar, but only if they are able to participate with a device that has audio and visual capability.

Programming Note: Healthcare attorney David Glaser is a permanent panelist on Monitor Mondays. Listen to his live reporting this coming Monday during a special 60-minute townhall edition of Monitor Mondays, 10 -11 a.m. EST.


David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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