CMS Extends Remote Direct Supervision Flexibilities in CY 2025 Physician Fee Schedule Final Rule

BACKGROUND

Certain categories of medical services, including many diagnostic tests, pulmonary and cardiac rehabilitation services, incident-to services, and certain hospital outpatient services, may be furnished by auxiliary personnel under direct supervision by a physician or other provider, as determined by CMS. “Direct supervision” typically requires that the supervising practitioner be physically present in the office suite and immediately available to furnish assistance and direction to the auxiliary personnel throughout their performance of the service. These rules apply to services payable under the Medicare physician fee schedule and services furnished by rural health clinics (RHCs) and federally qualified health clinics (FQHCs).

In response to the COVID-19 pandemic, CMS temporarily amended the definition of “direct supervision” to allow a supervisor to be “immediately available” by use of two-way, real-time audio/visual technology. This flexibility allowed physicians (and other supervising providers) to remotely provide direct supervision, as long as they were immediately reachable and able to provide assistance through real-time audio/visual technologies. The flexibility did not allow supervisors to be available via audio-only communications or asynchronous communications (e.g., phone calls or secure messaging platforms).

FINAL RULE

Following the expiration of the COVID-19 public health emergency, CMS extended these direct supervision flexibilities through the end of 2024. CMS has now extended the supervision flexibilities through December 31, 2025.

In the final rule, CMS declined to make the remote direct supervision flexibilities permanent for all services, but did adopt its proposal to make remote direct supervision permanent for a limited subset of services. In making this decision, CMS stated that further review is necessary to evaluate patient safety and quality concerns related to remote supervision. CMS highlighted that in-person direct supervision is necessary for procedures such as surgeries and high-risk interventions where a patient’s clinical status may rapidly change. CMS also solicited commentary on any additional safeguards to prevent fraud, inappropriate use, and patient safety concerns related to remote direct supervision.

CMS made the remote supervision flexibilities permanent only for the following services:

• Services furnished incident to a physician’s service when they are provided by auxiliary personnel employed by the physician and working under the physician’s direct supervision and for which the underlying HCPCS code has been assigned a PC/TC indicator of “5.”
• Services described by CPT code 99211: office and other outpatient visits for the evaluation and management of an established patient that may not require the presence of a physician or other qualified healthcare professional.

CMS noted that these services are low risk by nature, do not often demand in-person supervision, and are typically furnished entirely by the auxiliary personnel. Thus, allowing for permanent remote supervision adequately balances patient safety concerns with patient access, in CMS’s view. CMS initially considered including Level I emergency department visits in this subset of services but ultimately concluded that such services are not wholly furnished by auxiliary personnel and therefore declined to include such services in the rulemaking.

The flexibilities described above also apply to services provided by RHCs and FQHCs. CMS noted that there may be additional nuances in RHC and FQHC settings since auxiliary services are generally paid at all-inclusive rates or prospective payment systems, and CMS may address those nuances in future permanent rules. CMS stated that it may establish a final policy for RHCs and FQHCs after a final policy is determined under the physician fee schedule, in an effort to avoid any confusion. Further, patient access concerns are especially heightened in RHCs and FQHCs. Commentors have highlighted that remote direct supervision has enhanced the quality, accessibility, and provision of healthcare services in medically underserved rural communities.

TAKEAWAYS

Physicians and providers may use remote direct supervision through 2025. CMS has also started the process, albeit incrementally, of making remote direct supervision a permanent option for some services. Providers using remote direct supervision should consider developing written policies and procedures explaining how remote direct supervision is conducted, when it is permitted by the provider (which could be narrower than the scope approved by CMS), and how it should be documented.

In its commentary, CMS acknowledged that remote direct supervision has become an essential part of healthcare delivery, and that any abrupt changes back to requiring in-person direct supervision would be detrimental for both patient access and the providers that have come to rely on remote supervision. This acknowledgement, combined with the new category of permanent remote supervision services, makes it unlikely that CMS will seek to fully roll back this COVID-19-era flexibility. Instead, CMS has expressed that it will continue to evaluate the balance between patient safety and patient access when it comes to remote direct supervision. While RHCs and FQHCs currently follow the same flexibilities as services paid under the Medicare physician fee schedule, future rulemaking could differentiate policies to account for differing needs of these service providers.

In the final rule, CMS repeatedly expressed that it will continue to evaluate and monitor patient safety, access, safeguards, and other topics related to remote direct supervision. Healthcare providers that make use of remote direct supervision should consider gathering data and providing further comments as CMS continues to develop its policies in this area.