Incident To: Expanded Flexibility, Undefined Boundaries

In 2026, CMS made a meaningful change to the incident to supervision requirements. It did not take long for this update to raise questions for compliance professionals, auditors, and practice leaders.

Historically, direct supervision required the supervising physician to be physically present in the office suite and immediately available. The update allows direct supervision to be furnished virtually rather than requiring the physician to be physically present in the office suite.

However, CMS did not address a critical operational question. Where can the physician be located while providing that supervision?

There is no clear guidance on geographic proximity, state limitations, or whether the physician must remain within the United States.

The Benefits: Operational Flexibility and Access

From a practice management perspective, this change may create meaningful opportunities, such as:

-Increased provider efficiency: Physicians are no longer tied to a physical location solely to meet supervision requirements. This may allow for more strategic use of physician time, especially in multi-site or large group practices.

-Expanded access to care delivery models: Practices can see more patients and create more appointment availability by allowing non physician practitioners to provide care without requiring a physician to be physically onsite.

-Alignment with modern care delivery CMS is allowing non physician practitioners to function more independently within the practice, consistent with how they are trained, while still operating under any state physician oversight requirements.

The Frustrations: Gaps That Matter

There is, however, an area in which things become less comfortable from a compliance perspective. Let’s review these:

-There is a lack of defined proximity requirements: CMS does not clarify whether the supervising physician must be in the same state, within a certain distance, licensed where the patient is located, or physically present within the United States. 

That lack of clarity here creates interpretation risk. In auditing, unsupported interpretation creates exposure.

-Immediate availability remains unclear in practice: The requirement for immediate availability still exists, but its meaning in a virtual environment is not defined. Does a phone call meet the requirement? Are real time audio and video necessary? How are connectivity issues addressed?

Without clear expectations, practices are left to define and defend their approach. A clear policy should be created by your organization.

-State law considerations: Even when CMS allows virtual supervision, state scope of practice and licensure requirements still apply. Supervising across state lines may introduce compliance concerns that are not federal but are still significant.

-Audit vulnerability: From an auditing standpoint, the risk becomes more defined. If documentation does not clearly support who provided supervision, how they were immediately available, and that requirements were met, the service may not qualify as incident to. This is not information that has been documented previously for incident to reported services, but in the face of the new virtual supervision, it is absolutely necessary.

When incident to requirements are not met, billing is affected and may result in overpayment.

The Compliance Risk: What Is Lurking Beneath

This policy change offers flexibility, but it also introduces risk if not carefully implemented.

When CMS provides flexibility without detailed guidance, the responsibility shifts to the practice. Organizations must define their processes, apply them consistently, and maintain documentation that supports their decisions.

Assumptions do not hold up in an audit environment.

CMS guidance continues to require that all supervision and billing requirements are met for services billed under incident to. The method of supervision may have changed, but the expectation of compliance has not.

If your organization plans to use this flexibility, it should be done with intention.

Step One- Create a Policy!

Define what immediate availability means within your organization and ensure that definition is consistently applied.

Establish clear expectations regarding physician location and licensure.

Ensure that real time access to the supervising physician is available and can be supported if reviewed.

Conduct internal audits to validate that workflows meet incident to requirements before external review occurs.

This update reflects the direction of healthcare. Flexibility is increasing, but so is responsibility. This is one of those moments where the details matter. Understanding the nuance is what protects both the practice and the professional. Flexibility is valuable. Clarity creates protection. Right now, the balance is still evolving.

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