Even More Misinformation on Incident-To Billing

Once again, a well-known consulting organization has mischaracterized the “incident-to” requirements.

A few months ago, I wrote about an article that asserted you can’t bill “incident to” when the patient has a new problem. In that article, I explained why the regulation makes it perfectly clear that all the Medicare Administrative Contractors (MACs) are wrong when they claim one can’t diagnose when billing “incident to.”

Specifically, 42 CFR 410.26(b)(2) says that incident-to may be used “in the course of diagnosis or treatment of an injury or illness.” You don’t “diagnose” old problems, so the only way to interpret that regulation is that it allows a non-physician practitioner to “diagnose” while still billing “incident to” the physician.

The latest article from the same organization does acknowledge that there is a school of thought that the MAC policies asserting that you can’t do diagnosis “incident to” are an “overreach,” before asserting that the article is not the place for that debate. I believe that if an article discussing a rule isn’t the place to analyze its validity, I don’t know what is. 

But I am less troubled by this discussion than I am by another more blatant error.

The article correctly states that “incident to services require the direct supervision of the physician from the group.” That is absolutely correct. But it bungles the description of “direct supervision.” The article says the physician must be in the office suite, explaining that “the physician need not be in the room, but must be within the same office.” That perfectly summarizes the rule – as it was more than five years ago.

Prior to the COVID-19 pandemic and the associated public health emergency, it is true that a professional needed to be in the office suite. But in the spring of 2020, the Centers for Medicare & Medicaid Services (CMS) changed the definition of “direct supervision” found at 42 CFR § 410.32(b)(3)(ii) to say that “the presence of the physician or other practitioner includes virtual presence through audio/visual real time communication technology.”

The original extension was only through the year in which the public health emergency ended. But CMS then extended it until the end of 2024, then the end of 2025, and now, as part of the 2026 Physician Fee Schedule, it has made that extension permanent.

A physician need not be in the office suite to provide direct supervision. Availability through a smartphone or other device that is capable of audio/visual communication is sufficient. With that change being over five years old, I would hope that consultants who are selling their expertise to you would have caught up to it by now. But clearly, some have not.

In a situation where two people are disagreeing about the law, it can feel overwhelming. But it shouldn’t. Instead, ask each expert to provide the citation upon which they are relying.  Then read them.

If you look at the ECFR site for 42 CFR 410.32(b), you can read the language I’m quoting to you. They haven’t yet updated it with the language from the 2026 Medicare Physician Fee Schedule, so it will look like the definition expires Dec. 31, but you can look at the 2026 Fee Schedule to see the extension.

With that, the error of the consultant’s article should be apparent.