On December 2, 2020, CMS published the Calendar Year (CY) 2021 Medicare Physician Fee Schedule Final Rule (the “Final Rule”), finalizing the current remote flexibilities for residency training sites and teaching physicians for the duration of the COVID-19 public health emergency (PHE), and finalizing permanent revisions beyond the COVID-19 PHE as proposed in the CY 2021 Physician Fee Schedule Proposed Rule (the “Proposed Rule”). Most of the remote flexibilities extended beyond the COVID-19 PHE were focused on improving patient access to Medicare-covered physicians’ services, improving teaching capabilities, and potentially allowing for additional resident education opportunities in rural areas.

Supervision of Residents through Audio/Video Real-Time Communications Technology

In the March 31 COVID-19 Interim Final Rule with Comment (IFC 1) and the May 8 COVID-19 IFC (IFC 2), CMS adopted an interim-basis policy during the COVID-19 PHE authorizing teaching physicians to appear virtually using audio/video real-time communications technology in order to satisfy the requirement that teaching physicians must be physically present during the key portion of services furnished that involves a resident. This virtual flexibility requires real-time observation (not mere availability) by the teaching physician through audio and video technology, and not audio-only technology, such as a telephone without video.

Also for the duration of the COVID-19 PHE, CMS adopted a virtual presence policy: (i) under the primary care exception (PCE) to allow the teaching physician to direct the care furnished by the resident and review the services furnished by the resident during or immediately after the visit, remotely using audio/video real-time communications technology; (ii) to allow payment for the interpretation of diagnostic radiology and other diagnostic tests if the interpretation is performed by a resident when the teaching physician is present through audio/video real-time communications technology; and (iii) allowing the requirement for the presence of the teaching physician during a psychiatric service in which a resident is involved to be met by the teaching physician’s direct supervision using audio/video real-time communications technology.

CMS solicited general comments in the Proposed Rule on how best to proceed with the direct supervision policy at the conclusion of the COVID-19 PHE.

In the Final Rule, CMS first finalized the current interim rule in all teaching settings, as amended in IFC 2, continuing to allow teaching physicians to satisfy the presence requirements virtually, as outlined above, for the duration of the COVID-19 PHE.

After the COVID-19 PHE, however, CMS has finalized the following on a permanent basis for services provided at residency training sites that are located outside of a metropolitan statistical area (MSA), as defined by the U.S. Office of Management and Budget:

• General direct supervision. As a general rule, the requirement that a teaching physician be present in order to bill under the Medicare physician fee schedule (PFS) can be met through interactive, audio/video real-time communications technology, i.e., synchronous, interactive, audio and video communications technology, but not audio-only communications.
• Virtual review of services. A teaching physician may not only direct the care furnished by residents, but also may review the services provided with the resident, during or immediately after the visit, remotely through interactive, audio/video real-time communications technology, excluding audio-only.
• Interpretation of diagnostic radiology and other diagnostic tests. PFS payment may be made for the interpretation of diagnostic radiology and other diagnostic tests when the interpretation is performed by a resident, and when the teaching physician is present through interactive, audio/video real-time communications technology, excluding audio-only. The medical records must document the extent of the teaching physician's participation in the interpretation or review of the diagnostic radiology or diagnostic test.
• Psychiatric services. The teaching physician presence requirement for psychiatric services in which a resident is involved may be met using interactive, audio/video real-time communications technology, excluding audio-only. The medical records must document the extent of the teaching physician's participation in the service.

CMS reinforced that  medical records must clearly reflect whether the teaching physician was physically or virtually present at the training site during the key portion of the service, and must contain a note describing the specific portion of the service for which the teaching physician was virtually present. Additionally, if the teaching physician is virtually present and bills for services during which there is a disruption to the virtual connection between the teaching physician and the resident who is with the patient, CMS advises that the encounter should be paused until the connection resumes, or the appointment should be rescheduled.

Virtual Teaching Physician Presence during Medicare Telehealth Services

In IFC 1, CMS adopted an interim policy, for the duration of the COVID-19 PHE, allowing Medicare to pay under the PFS for teaching physician services when a resident furnishes Medicare telehealth services to beneficiaries while a teaching physician is present using audio/video real-time communications technology. CMS solicited comments in the Proposed Rule on whether or not this policy should continue beyond the COVID-19 PHE.

In the Final Rule, CMS finalized the current interim policy, as outlined in IFC 1, for the duration of the COVID-19 PHE and for all teaching settings. For the period after the COVID-19 PHE, CMS revised the scope of the policy to cover only services rendered outside of an MSA. Specifically, only in a residency training site located outside of an MSA, a teaching physician may bill under the PFS for Medicare telehealth services furnished by the resident when the physician is present during the key portion of the service through interactive, audio/video real-time communications technology, excluding audio-only. As noted, the current interim policy, which allows payment for all settings, remains in place for the duration of the COVID-19 PHE.

Resident Moonlighting in the Inpatient Setting

In IFC 1, CMS allowed residents to furnish and separately bill for inpatient physicians’ services provided outside the scope of their approved GME program (i.e., moonlighting), during the COVID-19 PHE, provided that (i) the services are identifiable physicians services and meet the conditions for payment of physicians services to beneficiaries by providers, (ii) the resident is fully licensed to practice medicine, osteopathy, dentistry, or podiatry by the state in which the services are performed, and (iii)  the services can be separately identified from those services that are required as part of the approved GME program. CMS solicited comments in the Proposed Rule on whether this flexibility should be extended to December 31, 2021, to allow only for a transition period before reverting to the original rule, or whether it should permanently continue after the COVID-19 PHE.

In the Final Rule, CMS finalized the current interim policy for the duration of the COVID-19 PHE and decided to make this policy permanent.  Residents may now permanently moonlight in the outpatient department, emergency department, or the inpatient setting of a hospital where they train, so long as the three criteria listed above are met. To address concerns about the potential duplication of payment with the IPPS for GME, CMS emphasized the importance of documenting the arrangement in the patient’s medical record. CMS noted that “for example, in the medical record, the resident could state that they are licensed to practice medicine, osteopathy, dentistry or podiatry by the state in which the service was performed, document that the service was performed outside of their approved GME program, and include a notation describing the specific physician service that was furnished.”

Primary Care Exception Policies

In IFC 1, CMS amended the PCE, which provides an exception to the PFS payment conditions for certain evaluation and management (E/M) services in teaching settings without the presence of a teaching physician. For the duration of the COVID-19 PHE, all levels of office or outpatient E/M visits may be furnished by a resident and billed by the teaching physician. IFC 2 further expanded the list of services included in the PCE during the COVID-19 PHE to allow moderate to high-level complexity services, also allowing PFS payment to the teaching physician for services furnished by residents via telehealth if the services were also on the Medicare telehealth services list. CMS solicited comments in the Proposed Rule to extend these revisions beyond the COVID-19 PHE.

In the Final Rule, CMS finalized the current interim rule, as amended by IFC 2, for the duration of the COVID-19 PHE. For the period after the COVID-19 PHE, CMS finalized that PFS payments to the teaching physician when the resident furnishes an expanded array of services may be permitted only for: (i) an inpatient residency training site located outside of an MSA, and (ii) communication-technology based services, inter-professional consults, and/or Medicare telehealth services. CMS finalized only a limited array of services in the Final Rule, not including any E/M Level 4 visits, because of the potential risk to patient safety when those services involve medical decision-making of at least moderate level complexity. Under the permanent rule, payments will be permitted for the teaching physician directing the care, as well as for reviewing the services furnished by each resident during or immediately after each visit through interactive, audio/video real-time communications technology.

Please feel free to contact the GME@Dentons team listed above if you have questions about these policies or other regulations discussed in the CY 2021 PFS Final Rule.