The Centers for Medicare and Medicaid Services (“CMS”) published numerous updates to its rules for graduate medical education in 2020, many of which take effect in the early part of 2021. This client alert is part one of our three-part series giving insight into these CMS changes and more recent statutory changes.

Moonlighting Rule Made Permanent

As part of its efforts to address the COVID-19 pandemic, CMS allowed for the Medicare billing and payment for services that moonlighting residents provide to inpatients in the hospitals where the residents train under certain conditions. This is a change from CMS’s longstanding prior policy under which resident moonlighting services in a resident’s home hospital were only billable when provided to patients in the teaching hospital’s outpatient departments or emergency department. Now, CMS has made this policy change permanent through the Medicare Physician Fee Schedule Final Rule (“PFS Final Rule”).

In many states, physicians are considered fully licensed before completing a graduate medical education training program. When possible, these physicians have been permitted to “moonlight,” or provide services for hospital and other patients in addition to those services that are required to complete their residency program. Since CMS already reimburses teaching hospitals for the presence of the residents through the hospital’s direct and indirect graduate medical education hospital reimbursement, moonlighting residents’ services could only be billed in a narrow set of circumstances based on location, excluding the inpatient setting, and provided they were not “related to” the resident’s approved GME program. CMS expanded this provision to include inpatient services through an interim final rule published on March 31, 2020, initially on a temporary basis, in response to the COVID-19 pandemic.

In the PFS Final Rule, CMS made this revision permanent. As of January 1, 2021, moonlighting residents’ services provided to inpatients (as well as services provided in outpatient or emergency departments) are billable as physician services, paid for under the Physician Fee Schedule, if the services are not related to the resident’s approved GME program. CMS also clarified that, regardless of the setting in which the resident performs their moonlighting services, the medical record must clearly reflect that the resident performed identifiable physician services that met the conditions of payment. This means that the available records should indicate that the resident is fully licensed to practice their profession and that the services are not performed as part of the resident’s approved GME program.

Analysis of Moonlighting Rule

While teaching hospitals will welcome some additional flexibility, it is unclear whether they will be able to implement the revised moonlighting rule on a broad basis. The longstanding moonlighting rule only permits these services to be billed if they are not “related to” the resident physician’s GME training program. GME training programs teach residents how to practice within a specialty, where the residents build competence and mastery—the same competency and mastery that allows a resident/moonlighting physician to receive medical staff privileges. As such, teaching hospitals will need to evaluate resident/moonlighting physician’s inpatient assignments on a case-by-case basis to determine that the physician is qualified to perform their assigned services and that the services are not “related to” the resident/physician’s GME program.

In addition, nothing in this new permanent expansion to allow moonlighting for inpatients where the residents train modifies any of the hospital conditions of participation (“CoP”) requirements that when moonlighting, the resident/physicians must achieve some status on the medical staff of the hospital and must qualify for some clinical privileges relevant to the inpatient services that are expected to be performed. In addition, no changes have been made to the DEA registration requirements, nor the many other elements that need to be satisfied for moonlighting. Given all of the requirements of this context, while the expansion of moonlighting for inpatients is a welcome change, there are barriers to the ability of residents to perform those services. With that, there may still be circumstances where residents who are re-deployed to care for inpatients in their home training hospitals are not considered “moonlighters,” but instead are continuing to work as residents under the supervision of teaching physicians. These residents would be considered to be on rotations that are part of their training, even though they are different from the rotations that were planned prior to the COVID-19 emergency. In those situations, the residents remain in training and performing services under supervision, and they would continue to be counted as “residents” by the teaching hospital. If they occur, these modified rotations and the altered training sites need to meet the applicable ACGME requirements for the program.

Given their advanced level of training and the fact that they may already be board eligible or board certified in a specialty, this new opportunity for moonlighting for inpatients may have greater application for fellows. While “fellows” are generally treated as “residents” for Medicare GME and Physician Fee Schedule payment purposes, their advanced level of training may allow them to work outside of their fellowship training programs and still yet be fully qualified to provide services in their given specialty. With that, it may also be easier to evidence that the services are not related to the fellowship training program. If teaching settings are classified as being in an Emergency Category by the ACGME, there may also be greater opportunities for the fellows to act as attending physicians. If the institution needs them to meet patient care needs, the ACGME also currently allows the fellows to perform these services for up to 20% of each academic year. When exploring that option, the applicable ACGME guidance should be closely followed, and as with residents, the CoP requirements for medical staff status and privileges must be met as well.

Clarifying Redocumentation Requirements

For many years, CMS billing rules required that any professional services billed under the Physician Fee Schedule be documented and signed by the provider who performed the services. The PFS Final Rule clarifies and eases this requirement for professional services provided in the teaching and non-teaching settings. Hall Render addressed this change in a prior client alert, available here. This article focuses on the applicability of this new rule in the context of clinical training.

In the past, this documentation requirement was interpreted to mean that the practitioner had to be the person who actually documented the services in the medical record. This led to redocumentation—a billing practitioner creating a duplicative entry in the medical record to ensure that Medicare would pay for the practitioner’s services. This situation arises in both teaching and non-teaching settings, and it is quite common where a practitioner is teaching a student as part of patient care delivery.

CMS has clarified this requirement in recent years, stating that the practitioner billing for the service does not need to be the person who physically enters the note into the patient’s medical record. With that, another physician, resident, nurse, student or another member of the medical team could prepare the medical record for the teaching practitioner’s review and signature, and the teaching practitioner does not need to document the service again in the record.

In the PFS Final Rule, CMS further clarified that this rule extends to therapists, such as speech therapists, occupational therapists and speech-language pathologists. CMS stated that the “broad policy principle that allows billing clinicians to review and verify documentation added to the medical record for their services by other members of the medical team also applies to therapists.”

Analysis of Redocumentation Requirements

In the PFS Final Rule 2020 (the prior Final Rule), CMS established the general principle that the physician, physician assistant or advanced practice nurse who bills for their professional services can review and verify, rather than re-document, information included in the medical record by physicians, residents, nurses, students or other members of the medical team. This change was widely supported by providers. CMS’s clarification will be welcome news to teaching hospitals and teaching clinicians because it reaffirms this general principle.

As stated by commenters, this flexibility helps to “better prepare clinicians to enter practice by increasing safety and education on how to document effectively and appropriately the skilled services they provide.” In acting on this clarification, providers should bear in mind that this change only affects a technical requirement, i.e., how otherwise billable services may be documented. All of the rules regarding teaching physicians billing for services provided by students and others still apply to the service.

Practical Takeaways

  • CMS’s now-permanent moonlighting rule may create Physician Fee Schedule payment opportunities for the services that residents/physicians provide to patients in the inpatient setting where they train. Physician services billing entities that wish to take advantage of this rule should carefully evaluate the services that would be appropriate for a given resident to provide and that they are not related to the resident’s training, and the teaching hospital where the services occur must still meet its CoP requirements for authorizing professional services.
  • Effective now, therapists are members of the care team who can document information in the medical record that can be reviewed and verified but need not be re-documented by the clinician able to bill for professional services to Medicare. Clinicians, including teaching physicians, should bear in mind that they continue to have ultimate responsibility for the content of the patient’s medical record and that they should only sign and date the record after reviewing, verifying, updating and supplementing it as necessary to describe the services performed and being billed.