CMS on Teaching Physician and Moonlighting Regulations During COVID-19 – Four Key Changes

April 3, 2020

On March 31, 2020, the Centers for Medicare & Medicaid Services (CMS) issued an interim final rule with comment period (IFC). This alert is part of a series of alerts discussing the IFC provisions and comprehensive actions CMS is taking that are most important to healthcare providers.

In response to the extraordinary circumstances of the 2019 novel coronavirus (COVID-19) pandemic, on March 31, 2020, CMS issued an IFC with 30 immediate rule changes and temporary waivers to the current regulatory framework. CMS aimed to provide the American healthcare system with maximum flexibility and lessen administrative burdens to allow Medicare beneficiaries to receive medically necessary services. Highlights of the IFC include numerous regulations to increase access to telehealth services and testing in patients’ homes, improve infection control, temporarily eliminate certain paperwork requirements so providers can focus on caring for COVID-19 patients, expand the healthcare workforce capacity, increase hospital capacity and make other changes to combat the COVID-19 pandemic. CMS announced that these temporary changes and regulations were effective on March 31, 2020, across the entire U.S. healthcare system for the duration of the emergency declaration.

As part of CMS’ efforts to expand the healthcare workforce and access to telehealth services for Medicare patients, the IFC responds to concerns by stakeholders regarding teaching physician and moonlighting regulations, including concerns surrounding the previous supervision requirements related to the provision of teaching physician services under the Physician Fee Schedule (PFS), increasing demands for physicians at teaching hospitals to respond to patient needs, and payments under Medicare Part B for teaching physician services and resident moonlighting.

This article summarizes the four key amendments to teaching physician and moonlighting resident regulations proposed by CMS in the IFC that teaching hospitals need to know.

Revisions to Teaching Physician Regulations and Supervision Requirements

Currently, the regulations regarding PFS payment for teaching physician services generally provide that if a resident participates in a service furnished in a teaching setting, the teaching physician must be physically present during the key portion of the service in order for a PFS payment to be made for that service. Similarly, under the current regulations, PFS payment for certain services rendered by residents is conditioned upon the presence, performance or review of the service by a teaching physician. To increase the capacity of teaching settings and residents to respond to the COVID-19 pandemic, CMS is amending the teaching physician regulations as follows for the duration of the COVID-19 pandemic:

  1. In a teaching setting, the requirement for the presence of a teaching physician can be met, at a minimum, through direct supervision by interactive telecommunications technology, thereby giving teaching physicians the option to be physically present or present through interactive telecommunications technology during the key portion of the service.
  2. All levels of an office/outpatient evaluation and management service provided in primary care centers may be provided under direct supervision of the teaching physician by interactive telecommunications technology.
  3. With respect to diagnostic radiology and other diagnostic tests when the interpretation is performed by a resident, CMS will allow PFS payment to be made where direct supervision of the teaching physician is performed by interactive telecommunications technology, but clarified that the teaching physician must still review the resident’s interpretation.
  4. The requirement for the presence of a teaching physician during a psychiatric service in which a resident is involved may be met by the teaching physician’s direct supervision by interactive telecommunications technology.
  5. In the instances described above, although CMS is temporarily relaxing the regulations to view direct supervision by interactive telecommunications technology as the minimum requirement for purposes of Medicare payment, CMS encourages teaching physicians to continue to exercise their clinical judgment to determine whether it is appropriate to use these flexibilities in providing services involving residents. It is important to note that in the case of surgical, high-risk, interventional or other complex procedures, as well as services performed through an endoscope and anesthesia services, the exceptions described above will not apply.

Application of the Expansion of Telehealth Services to Teaching Physician Services

As discussed in a McGuireWoods legal alert, on March 17, 2020, CMS announced the expansion of telehealth services on a temporary and emergency basis. To increase the capacity of teaching settings to respond to the COVID-19 pandemic, CMS is revising its regulations on an interim basis to specify that Medicare may make payment under the PFS for teaching physician services when a resident provides telehealth services to beneficiaries under direct supervision of the teaching physicians, which is provided by interactive telecommunications technology. Additionally, also on an interim basis, Medicare may make payments under the PFS for services billed under the primary care exception by the teaching physician when a resident renders telehealth services to beneficiaries under the direct supervision of the teaching physician by interactive telecommunications technology.

Payment Under the PFS for Teaching Physician Services While a Resident Is Under Quarantine

To limit exposure to COVID-19 and to allow for continued access to services of residents who may be under quarantine, CMS, on an interim basis, will permit Medicare payment under the PFS for teaching physician services when the resident is furnishing these services while in quarantine under direct supervision of the teaching physician by interactive telecommunications technology.

Revisions to Resident Moonlighting Regulations.

“Moonlighting” refers to services residents perform that are outside the scope of their approved graduate medical education (GME) program. Currently, moonlighting resident services in hospitals in which the residents have their approved GME program are not covered as “physicians’ services” under the PFS and are instead reimbursed through Medicare GME payments. There is a limited exception for moonlighting services to be separately billable as physicians’ services when the services are not related to the resident’s GME program and are provided in an outpatient department or emergency department of the same hospital in which they have their training program or the moonlighting services are provided in another hospital/setting that does not participate in the program. As a result, CMS and stakeholders are concerned about unintentionally limiting the number of physicians available to furnish services at a time when teaching hospitals need as many physicians as available to respond to and treat COVID-19 infections.

In response, CMS is amending 42 C.F.R. § 415.208 on an interim basis to allow services that are not related to residents’ approved GME programs and are performed in the inpatient setting of a hospital in which they have their training program to be separately billable physicians’ services paid under the PFS. In order to receive payment, (1) the services must be identifiable physicians’ services; (2) the services must meet the conditions of payment for physicians’ services to beneficiaries in providers in 42 C.F.R. § 415.102(a); (3) the resident must be fully licensed to practice medicine, osteopathy, dentistry or podiatry by the state in which the services are performed; and (4) the services must not be performed as part of the approved GME program.

CMS is amending the regulation to apply on an interim basis for the duration of the public health emergency for the COVID-19 pandemic.


The public may submit comments on the IFC regulations until June 1, 2020. For details, see the full text of the IFC. The CMS also provides additional information regarding teaching flexibilities applicable to teaching hospitals.

Please contact the authors or any of the McGuireWoods COVID-19 Response Team members for additional information on each of the rule changes listed above or to discuss submitting a comment letter to CMS on the IFC. CMS very likely will continue to announce supplemental guidance on these regulatory changes, and McGuireWoods will continue to monitor the progress of the IFC and other COVID-19-related legislation and provide updates along the way. Additional guidance regarding the array of changes included in the IFC and the impacts of the IFC on the operation of healthcare providers will be forthcoming in future McGuireWoods legal alerts.

McGuireWoods has published additional thought leadership on how companies across various industries can navigate urgent and evolving challenges arising from the COVID-19 pandemic on the McGuireWoods COVID-19: Impact and Insight Page.