The COVID-19 public health emergency (PHE) resulted in widespread changes in the delivery of health care items and services to patients, particularly those that required “direct supervision” under Medicare Part B. The Centers for Medicare & Medicaid Services (CMS) relaxed the direct supervision requirement during the PHE to include circumstances where a physician (or other practitioner) was “immediately available” by virtual presence through two-way audio/video real-time communications technology. Effective January 1, 2026, CMS adopted this relaxed definition of direct supervision permanently for a broad category of services including:
- “incident to” services furnished by auxiliary personnel (42 C.F.R. §410.26);
- diagnostic tests (42 C.F.R. §410.32);
- pulmonary rehabilitation services (42 C.F.R. §410.47); and
- cardiac rehabilitation and intensive cardiac rehabilitation services (42 C.F.R. §410.49).
CMS declined to extend this relaxed definition of “direct supervision” to services that have a global surgery indicator of “010” (i.e., minor surgical procedures with a 10-day post-operative period) or “090” (i.e., major surgical procedures with 90-day post-operative period). Services using these global surgery indicators are still governed by the pre-PHE definition of “direct supervision”, which requires the physician (or other supervising practitioner) to be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the service.
According to CMS, it chose to retain the pre-PHE definition of “direct supervision” for certain surgical services to ensure quality of care and patient safety, as well as the “ability of the supervising practitioner to intervene if complications arise, particularly in complex, high-risk instances where unexpected or adverse events may occur or for procedures that may be riskier or more intense where a patient’s clinical status can quickly change.” Although CMS received overwhelming support for this permanent change—a change that demonstrates CMS’s willingness to adapt to evolving technologies—providers should nevertheless exercise caution to ensure that they comply with any applicable billing, coding, and documentation rules, state law requirements, and professional scope of practice standards.
Should you have any questions regarding the above, please contact the authors, the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].
