On July 10, the Centers for Medicare & Medicaid Services (CMS) proposed to extend virtual direct supervision—i.e., the ability to provide direct supervision through real-time, audio-visual technology (rather than in-person presence)—through December 31, 2025, and to permanently allow virtual direction supervision for a subset of "incident to" services.
Part of the CY 2025 Medicare Physician Fee Schedule (MPFS) proposed rule and CY 2025 Medicare Hospital Outpatient Prospective Payment System and Ambulatory Surgical Center Payment System (OPPS) proposed rule, these proposals would revise 42 C.F.R. §§ 410.26, 410.27, 410.32 to allow practitioners to continue using virtual direct supervision while CMS continues to consider the future of virtual direct supervision, a task it frames as balancing patient safety, quality, and program integrity concerns with the interest of supporting expanded access to care and preserving workforce capacity for medical professionals.
Proposed Extension and Permanent Changes
In the MPFS and OPPS proposed rules, CMS proposes to broadly extend the virtual direct supervision flexibility for another year, through December 31, 2025. For the first time, the MPFS proposed rule also proposes to permanently extend virtual direct supervision for the following subset of incident-to services that are almost always performed entirely by auxiliary personnel:
- Services furnished incident to a physician or other practitioner's service when provided by auxiliary personnel employed by the billing practitioner and working under their 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 or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician or other qualified health care professional).
CMS reasons that these specific services present less of a patient safety concern than services for which there may be a need for immediate intervention of the supervising practitioner. Specifically, CMS believes these services are low risk by their nature, do not often demand in-person supervision, and are typically furnished entirely by the supervised personnel. Allowing virtual direct supervision of these services, CMS concludes, would balance patient safety concerns with the interest of supporting access and preserving workforce capacity.
The MPFS proposed rule also suggests a path to permit permanent virtual direct supervision for additional services in the future. CMS proposes an incremental approach through which it will expand virtual direct supervision for services that it determines are "inherently lower risk," meaning those that ordinarily do not require the physical presence of the billing practitioner, do not require direction by the supervising practitioner to the same degree as other services furnished under in-person direct supervision, and are not typically performed directly by the supervising practitioner.
The Future of Virtual Direct Supervision
The future of virtual direct supervision is bright given CMS's proposal to again extend virtual direct supervision for another year and, more significantly, to make virtual direct supervision permanent for certain services, while it considers an incremental approach towards expanding the services for which the flexibility is made permanent.
Many stakeholders—including those who commented in support of the proposal to extend virtual direct supervision through the end of 2025—tout its ability to enhance patient access to quality care, particularly in underserved areas and for high-risk populations. As CMS continues to weigh the favorable aspects of virtual direct supervision against the safety, quality, and program integrity concerns, it will be important for stakeholders marshal evidence in favor of their positions.
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