|Footnotes for this article are available at the end of this page.
On April 9, 2020, the Centers for Medicare and Medicaid Services (“CMS”) provided additional guidance on CMS’s waiver of certain Medicare physician supervision requirements in response to Coronavirus Disease 2019 (COVID-19). CMS initially announced modifications to certain physician supervision requirements on March 30, 2020, when it announced multiple other temporary regulatory waivers in response to COVID-19. The waivers have a retroactive effective date, covering all services from March 1, 2020, and will remain in effect throughout the duration of the COVID-19 Public Health Emergency.
This article focuses on CMS’s regulatory waivers of certain Medicare physician supervision requirements. The changes afford providers maximum flexibility when implementing physical distancing protections and greater autonomy over staffing models. Notwithstanding the federal waivers, before implementing any of the following policy changes, providers should first confirm whether their state has also implemented temporary suspensions of any applicable state law physician supervision requirements.
We further recommend that providers maintain documentation that they have implemented measures consistent with the CMS waivers governing physician supervision.
- Physicians and other practitioners may provide direct supervision virtually using real-time audio/video technology. CMS revised the definition of direct supervision to include a virtual presence via interactive telecommunications technology for services paid under the Physician Fee Schedule and hospital outpatient, pulmonary, cardiac, and intensive cardiac rehabilitation services.
- Physicians may enter into contractual arrangements with auxiliary personnel to provide care that would ordinarily be provided incident to physicians’ services. Auxiliary personnel include the staff of another provider or supplier type, such as home health agencies, qualified home infusion therapy suppliers, or entities that furnish ambulance services. The auxiliary personnel must still be able to provide the necessary staff and technology (including services performed via telehealth). In such instances, the provider or supplier would seek payment for any services provided by the auxiliary personnel from the billing practitioner and would not submit claims to Medicare for such services.
- Physicians may provide general supervision, rather than direct supervision, for non-surgical, extended duration, therapeutic services provided in hospital outpatient departments and Critical Access Hospitals (CAHs). For general supervision, physicians should furnish overall direction and control over the service but are not required to be physically preset during the performance of the services or immediately available in the office suite. General supervision also includes a virtual presence using telecommunications technology, such as by audio-only telephone or text messaging. Most other therapeutic hospital outpatient services have been subject to general, rather than direct, supervision requirements since January 1, 2020.
- Hospital patients not always required to be under the care of a physician. By waiving the standard requirement that every Medicare patient be under the care of a physician, CMS gives hospitals flexibility to use other practitioners, such as Physician’s Assistants (PAs) and Nurse Practitioners (NPs), to the fullest extent possible. However, CMS noted that this waiver should be implemented in accordance with the applicable state’s emergency preparedness or pandemic plan.
- Providers are no longer beholden to National Coverage Determination (NCD) and/or Local Coverage Determination (LCD) requirements that a specific practitioner type or physician specialty to furnish or supervise certain services. Instead, a hospital or facilities the Chief Medical Officer may make those staffing decisions.
- Hospital, CAH, and Ambulatory Surgical Center physicians do not need to provide direct supervision of Certified Registered Nurse Anesthetists (CRNAs). This allow CRNAs to function to the fullest extent of their licensure. However, providers may only implement this change in accordance with their state’s emergency preparedness or pandemic plan, state law, or facility policy.
- CAH physicians may provide medical direction and consultation, and supervision of services remotely. CAHs may use PAs and NPs to the fullest extent possible, while physicians may provide necessary consultation and support as needed remotely, when appropriate. However, supervising physicians must still be available “through direct radio or telephone communication, or electronic communication for consultation, assistance with medical emergencies, or patient referral.”
- Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs) physicians may provide medical direction, consultation, and supervision of NPs remotely. However, supervising physicians must continue to provide medical direction, consultation, and supervision for the remaining health care staff, either in person or through telehealth and other remote communications. This allows RHCs and FQHCs to use NPs to the fullest extent possible, to the extent permitted by state law.
- Skilled Nursing Facility (SNF) physicians may delegate additional tasks to certain qualified PAs, NPs, or clinical nurse specialists. Although this waiver has been authorized by CMS, this delegation requires that practitioners may only perform delegated tasks when applicable under the state’s scope of practice laws, and any delegated task must continue to be under the supervision of the physician.
For more information CMS’s physician supervision waivers or other Medicare waivers in response to COVID-19, please contact Rebekah N. Plowman or Charmaine A. Mech.
 For an overview of CMS’s other regulatory waivers that were also implemented on March 30, 2020, see Rebekah N. Plowman’s article, COVID-19 Spurs Government Action Through Multiple Temporary Regulatory Waivers for Health Care Providers.
 The federal regulations define “auxiliary personnel” as “any individual who is acting under the supervision of a physician (or other practitioner), regardless of whether the individual is an employee, leased employee, or independent contractor of the physician (or other practitioner) or of the same entity that employs or contracts with the physician (or other practitioner), has not been excluded from the Medicare, Medicaid and all other federally funded health care programs by the Office of Inspector General or had his or her Medicare enrollment revoked, and meets any applicable requirements to provide incident to services, including licensure, imposed by the State in which the services are being furnished.” 42 C.F.R. § 410.26(a)(1).