Telemedicine has become an increasingly important part of the healthcare delivery landscape. Since the early stages of the COVID-19 pandemic, the Centers for Medicare & Medicaid Services (“CMS”) have repeatedly issued regulatory flexibilities to allow Medicare to cover certain services provided in whole or in part by telemedicine. One of the most important of these regulatory flexibilities is the expansion of the definition of “direct supervision” to include direct supervision by telemedicine. CMS recently extended the effective period of this expansion through the end of 2025 and hinted at how it may handle direct supervision after that.
CMS has created three levels of supervision: personal, direct, and general supervision. Various services may require one of these levels of supervision in order to be covered by Medicare. Direct supervision is particularly important because it applies to several circumstances, including services provided and billed “incident to” a physician’s service. Click here for an explanation of “incident to” billing. Historically, direct supervision in the office setting has meant that the physician must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure. It does not mean that the physician must be present in the room when the procedure is performed.
However, during the COVID-19 public health emergency (“PHE”), CMS expanded this definition of direct supervision to provide that the presence of the physician (or other practitioner) includes virtual presence through audio/video real-time communications technology. Audio-only communication is not included. This expansion was intended to be temporary and expires at the end of the PHE. However, it has proved so useful and integral to the delivery of services to Medicare beneficiaries that it has been repeatedly extended, including past the official end of the PHE.
The most recent extension came in the recently released 2025 Physician Fee Schedule (“PFS”) Final Rule. CMS extended the acceptance of direct supervision by virtual presence through December 31, 2025. CMS has long expressed an intent that this expanded definition is temporary, while also fielding significant comments from providers desiring that it be made permanent. In the 2025 PFS Final Rule, CMS hinted that this may be the last temporary extension and, starting in 2026, it would implement a permanent change to direct supervision. Specifically, CMS indicated that it intends to allow direct supervision by telemedicine on a permanent basis only for certain services, while all other services will revert back to personal direct supervision after December 31, 2025. It should be noted, however, that public comments by providers and others in the healthcare industry, as well as the impending change in political administration, may impact CMS’s plans. The state of direct supervision by telemedicine after December 31, 2025 remains undetermined.
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 telemedicine or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.