CMS Interim Final Rule Provides Welcomed Flexibility to the Nation’s Teaching Hospitals
Teaching hospitals play a vital role in our communities by providing excellent clinical care, breaking new ground in research, and educating our next generation of health care providers. Today, they are playing a critical role in helping the country manage the coronavirus (COVID-19) outbreak. In many respects, they are leading the way in helping us develop new treatments, and ultimately a vaccine. In recognition of this, the Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS) included rule changes in its March 30 Interim Final Rule (IFR) that will directly assist teaching hospitals during the COVID-19 pandemic.
Specifically, CMS relaxed the supervision requirements for teaching physicians under the Physician Fee Schedule (PFS) and granted approval for residents to “independently furnish services in their capacity as fully licensed physicians outside the scope of their approved [graduate medical education] residency in the inpatient setting of the hospital at which they provide services.”
Teaching Physician Supervision Requirements
Consistent with many of the expansions we have seen in telehealth, CMS’s IFR relaxes the general supervision requirements by allowing teaching
physicians to supervise residents remotely via interactive telecommunication.
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Prior to these changes, to receive payment for a service in which a resident participates, a teaching physician had to physically be present and supervise the critical or key portions of a service or procedure. In addition, there were specific requirements for psychiatric services, diagnostic radiology and other tests, and evaluation and management services based on the level of service provided. All of the supervision requirements for these types of procedures and tests have been relaxed during the pandemic to help teaching hospitals increase their capacity to provide care and address the increased demand for physicians. Specifically, CMS made the following rule changes during the COVID-19 pandemic:
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a teaching physician can provide direct supervision either with his/her physical presence or via interactive telecommunications technology;
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all levels of office/outpatient E/M services provided in a primary care center may be done under direct supervision by the teaching physician via interactive telecommunication;
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for diagnostic radiology and other diagnostic tests interpreted by a resident, the teaching physician must still review the interpretation, but he/she can provide direct supervision of the resident via telecommunication; and,
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when a resident is involved in the provision of psychiatric services, a teaching physician can provide supervision via interactive telecommunications technology.
These rules apply when a teaching physician and/or resident are under quarantine, otherwise at home, or when the physical proximity of the physician and/or resident might present an increased risk because the patient, the resident, and/or the teaching physician may have been exposed to COVID-19. The hope is that this flexibility will allow qualified health care professionals to furnish much needed services to Medicare patients in a safe manner for patients, the teaching physician, and the resident.
For the above services, CMS acknowledges that direct supervision by interactive telecommunications technology is a viable option given the circumstances of this pandemic, but it is only an option. Physicians should continue to use their best clinical judgment and recognize that there may be circumstances where using telecommunication is not in the best interest of the patient and therefore, insist upon a higher standard.
CMS drew a line in the sand, however, when it came to surgical, high-risk, or other complex procedures to include those performed by using an endoscope as well as anesthesia services. Given the complex nature of these procedures, CMS continues to require the physical presence of the teaching physician for either the entire procedure, or the key portions of the service, whichever is applicable and necessary for patient safety.
Moonlighting Rules
“Moonlighting” is when a licensed resident physician provides physician services to outpatients outside the scope of his/her approved GME program.
To help teaching hospitals secure as much physician coverage as possible during the pandemic, CMS will allow residents to provide services outside the scope of their approved GME programs and performed in inpatient settings of the hospitals in which they have their training programs. These services can be billed separately under the PFS if the following conditions are otherwise satisfied:
(1) services must be identifiable physician services that meet conditions of payment as otherwise required;
(2) resident is fully licensed to practice in the state where services are to be performed; and,
(3) resident services are not performed as part of the approved GME program.
On an important related issue, hospitals who train residents are typically allowed to claim them for indirect medical education (IME) and direct graduate medical education (DGME) purposes. This is true even if the resident is training at a non-provider site such as a physician practice or clinic. However, no provision allows a hospital to claim a resident for IME or DGME if the resident is performing patient care activities within the scope of his/her approved program in his/her home, or in a patient’s home. In the IRF, CMS makes an exception during the pendency of the pandemic and will allow hospitals to claim for IME and DGME purposes any resident performing patient care duties within the scope of the approved residency program, provided, (1) the hospital is paying for the resident’s salary and fringe benefits during the time that the resident is at home or in the home of a patient, and (2) the patient is already a patient of the physician or hospital.
Key Take-Aways
As noted above, these changes are welcomed by teaching hospitals and physicians because they help address the physician shortage that many communities are experiencing and can
reduce the risk of exposure for health care providers and patients; but they also allow patients to receive the critical medical care that they need in a timely manner. It is important, however, that hospitals and health
care providers take care to implement these rules correctly.
Below are a few key take-aways:
(1) Develop an interim policy outlining these changes within your organization and how they will be implemented during the pendency of the pandemic. The policy can be brief, but it should strive to provide some high-level guidance to your physician leaders to help them understand the rule changes and assist them in the modifications to their practice.
(2) Communicate, educate, and train to this new policy. This will be difficult given all of the competing demands on providers, but it will assist their practices during this crisis, and help protect their health and safety.
(3) Compliance officers and billing/coding experts should be current with these rule changes and understand their impact on the operations. To the extent possible, they should be actively engaged with providers, assisting with implementation, and monitoring documentation.
(4) Understand that there will be some risk and second-guessing in the future. Risk may arise from both the regulatory and professional liability context, so informing your leadership and getting buy-in on your policy and operational changes are advised.
(5) Likewise, it cannot be stressed enough that thorough, accurate, and timely documentation by providers will be key to any future challenges or second-guessing.
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[1] See also Section II(C) of the IFR which outlines CMS’s position that, during this pandemic, it has amended the definition of an interactive telecommunications system to include “multimedia communications
equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and distant site physician or practitioner.” In addition, this section
outlines the Office of Civil Rights’
recent announcement that it will exercise enforcement discretion where providers are acting in good faith to provide care “through everyday communications technologies, such as FaceTime or Skype.”