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CMS Proposes Extension of Virtual Direct Supervision

On July 13, 2023, the Centers for Medicare & Medicaid Service (CMS) released the Calendar Year 2024 Physician Fee Schedule Proposed Rule, proposing to extend remote supervision. The proposed rule continues to define “direct supervision” by allowing supervising physicians and practitioners the ability to continue “direct supervision” through real-time audio and visual interactive telecommunications through December 21, 2024.

Typically, to be payable under Medicare Part B, specific types of services must be provided under certain levels of “direct supervision” by a practitioner or physician. These services often include many diagnostic tests and other services furnished by auxiliary personnel incident to the services of the billing physician. “Direct supervision” usually requires the “immediate availability” of a supervising professional — both in-person and physical availability. However, during the COVID-19 Public Health Emergency (PHE), CMS allowed flexibility in what constituted “direct supervision” by allowing “immediate availability” to include virtual presence using two-way, real-time audio or video technology, instead of requiring physical presence. This policy allowing remote direct supervision was originally set to expire at the end of 2023.

However, due to the increased reliance on virtual direct supervision by physicians and beneficiaries alike, CMS expressed several concerns regarding the expiration of the policy. In its proposed rule, CMS noted that, despite the new patterns of virtual direct supervision that were established and often maintained during the PHE, evidence showing that patient safety is compromised by virtual direct representation is entirely absent. Moreover, telehealth services have overall allowed individuals in rural and undeserved areas to have improved access to care. Expiration of this policy could create substantial barriers to access of many healthcare services, including those furnished incident-to a physician’s service.

Additionally, CMS acknowledges that healthcare professionals have adopted new patterns of practice during the PHE, and these professionals might face an “abrupt transition” to the pre-PHE policies requiring in-person, physical presence to constitute appropriate direct supervision. As a result of healthcare professionals’ reliance on virtual direct supervision following the PHE, professionals will need additional time to readjust and reorganize their practices to implement approaches established before the PHE.

Accordingly, CMS is proposing to continue to define “direct supervision” to permit a practitioner’s presence and immediate availability through real-time audio and video interactive telecommunications through December 31, 2024. CMS believes that this extension aligns with several other PHE-related policies enacted by Congress allowing telehealth services until the end of 2024. CMS will continue to evaluate the implications of permanently extending the definition of direct supervision to including virtual presence availability beyond December 31, 2024.

For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments in healthcare law and regulation. If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or

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