Yesterday, the Centers for Medicare & Medicaid Services (CMS) issued a final rule that includes payment updates and various policy changes to the Medicare Physician Fee Schedule (MPFS).The new rule is effective on January 1, 2023.  A big question for radiology groups and imaging centers has been whether CMS would act in the final CY 2023 MPFS rulemaking to extend permission for virtual supervision of level two diagnostic tests; this permission is set to expire at the end of next year. The answer to that question is that the agency deferred making a final decision.  

Specifically, what has been under consideration is whether CMS would make permanent a rule that modified temporarily the "direct supervision" requirements for MRI and CT scans with contrast media administered to allow the supervising physician or non-physician practitioner (NPP) to be immediately available through virtual presence via real-time, interactive audio/video communications technology. Currently, this rule is set to expire at the end of the calendar year in which the public health emergency (PHE) ends 

In the 2023 MPFS proposed rule, CMS solicited comments on whether the rule permitting real-time virtual supervision should be made permanent or whether it should simply end on December 31 of the year the PHE ends. A number of industry stakeholders, including the American College of Radiology and the Radiology Business Management Association, submitted comments supporting extension of the ability for the supervising physician or NPP to supervise these tests virtually. It should be noted that both organizations and other stakeholders who commented also recommended that in making this rule permanent, CMS should, in the interest of patient safety, consider requiring the on-site presence of auxiliary clinical personnel who could assist the patient in the case of an emergency.

CMS announced in the final rule that it plans to continue to gather information on this topic and not make a decision at this time. It believes allowing additional time to collect information and evidence regarding direct supervision through virtual presence will help it to better understand the potential circumstances in which this flexibility could be appropriate permanently, outside of the PHE for COVID-19. 

Since Health & Human Services (HHS) Secretary Xavier Becerra renewed the PHE for the COVID-19 pandemic for a 90-day period beginning on October 13, 2022, the PHE has been extended until at least January 11, 2023, absent any further action by the Secretary regarding the PHE for COVID-19. As such, CMS expects to continue to permit direct supervision of level two diagnostic tests through virtual presence through at least the end of calendar year 2023. 

CMS indicated that it will consider the comments received from the proposed rule for potential future MPFS rulemaking on this issue.