In the wake of the COVID-19 emergency and in response to many stakeholder requests, CMS issued an Interim Final Rule with Comment Period that formalizes many temporary waivers and flexibilities that streamline the Agency’s response to the current Public Health Emergency (PHE). Among these regulatory changes is a provision that relaxes rules applicable to resident moonlighting.

CMS regulations applicable prior to the PHE prohibit residents from furnishing moonlighting services to patients in the inpatient setting of a hospital where they are training, even if those services are outside the scope of their approved GME program. For example, a resident in an anesthesia program would not be able to provide separately billable physician services when treating inpatients in an ICU for COVID-19.

During the COVID PHE, however, CMS is modifying 42 CFR § 415.208 to provide that a service performed by a resident that is not related to the resident’s approved GME program and that is performed in the inpatient setting of hospital in which the resident trains is a separately billable physician service if: (1) the service is an identifiable physician service and meets the conditions of payment set forth in §415.102(a); (2) the resident is fully licensed to practice by the state in which a service is performed; and (3) the service is not performed as part of the approved GME program. Given this third requirement, hospitals must continue to be cautious not to claim resident moonlighting time for Medicare DGME and IME payment purposes.

For additional information on other GME-related waivers and flexibility see CMS Relaxes Medicare GME Rules During COVID-19 Pandemic. Please do not hesitate to reach out to the GME @ Dentons team during this emergency for any assistance we can provide with respect to your residency programs.