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Using Non-Physician Practitioners Correctly in Orthopedics Incident-To Guidelines: September 9, 2019 Jeana M. Singleton, Esq.
Click to Edit Master Title StyleUsing Non-Physician Practitioners
Correctly in Orthopedics
Incident-To Guidelines:
September 9, 2019Jeana M. Singleton, Esq.
• Introduction
• “Incident to” Billing: The Law
• “Incident to” Billing: Examples
• Medicaid and “Incident to”
• Benefits and Noncompliance
• Best Practices and Resources
• Questions
Agenda
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What is “Incident to” Billing?
• To be covered “incident to” the services of a “physician”, services and supplies must be: • An integral, although incidental, part of the
physician’s professional service; • Commonly rendered without charge or included in
the physician’s bill; • Of a type that are commonly furnished in
physician’s offices or clinics; • Furnished by a “physician” or by auxiliary personnel
under the physician’s direct supervision.• CMS’ Internet-Only Manual (IOM) Publication 100-02, Chapter 15,
Section 60
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What is “Incident to” Billing?
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• Applies ONLY to Medicare• Other payers may or may not follow Medicare
guidelines (EX: Anthem requires all providers to bill under their own NPI)
• State Medicaid programs also have their own requirements (to be discussed later)
• Allows “physicians” to bill outpatient services provided by non-physician practitioners (“NPPs”).
“Physicians”
• Note that throughout this presentation we will refer to “physicians” as the billing practitioner
• However, “physician” means the following, as it relates to billing for incident to services:– MDs and DOs
• This does not include residents/fellows– Physician Assistants– Nurse Practitioners– Clinical Nurse Specialists– Nurse Midwives– Clinical Psychologists
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Non-Physician Practitioners (“NPPs”)
• Advanced Registered Nurse Practitioner
• Certified Nurse Midwife
• Clinical Nurse Specialist
• Clinical Psychologist
• Clinical Social Worker
• Speech Language Therapist
• Nurse Practitioner
• Physician Assistant
• Physical Therapist
• Occupational Therapist
Note: Some NPPs can also be “physicians” under the “incident to” billing guidelines
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NP
PA
CNS
NM
CP
MD or DO Meet incident to requirements?
If yes, bill incident to. If supervised by MD
or DO, bill at 100%. If supervised by non-
MD or non-DO physician, bill at NPP
reimbursement percentage.
If no, bill directly.
Reimbursement for “Incident to” Services
• “Incident to” billing allows services provided by NPPs to be reimbursed at 100% of the MPFS if supervised by an MD or DO, or at 85%-100% of MPFS if supervised by a non-MD or non-DO physician
Physician NPP
Reimbursement Without “Incident to” Billing
• This chart is a list of reimbursement amounts without “incident to” billing, as if each practitioner is billing under their own NPI:
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Practitioner Reimbursement Rates (% MPFS)
MD or DO 100%
Physician Assistant 85%
Nurse Practitioner 85%
Clinical Nurse Specialist 85%
Nurse Midwife 100%
Clinical Psychologist 100%
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All providers must be licensed and
providing services within their scope of
practice
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“Incident to” Billing:
The Law
42 C.F.R. § 410.26: Conditions for “Incident to” Billing
• Medicare Part B will pay for “incident to” services and supplies that satisfy the following 9 criteria:
1. Services and supplies must be furnished in a non-institutional setting to a non-institutional patient.
– Services and supplies are those included in Section 1861(s)(2)(A) of the Social Security Act and are not specifically listed in the Act as a separate benefit included in the Medicare program
• May not apply “incident to” billing to services that already have their own benefit category (diagnostic tests, flu shots, laboratory tests, DME, etc.)
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Example
• Must a supervising physician be physically present when flu shots, EKGs, laboratory tests or x-rays are performed in an office in order to be billed as “incident to” services? – These services have their own statutory benefit
categories and are subject to the rules applicable to their specific category
– These are not “incident to” services – “Incident to” rules do not apply
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Non-Institutional Settings
• No services performed in a hospital, provider-based location, or skilled nursing facility (these would be bundled into Part A)
• Separate office suites within institutions– Must be separately identified and clearly delineated from
the institution; cannot extend throughout the facility– Example: If you have an office in a hospital, it must be
confined to a separately identifiable part of the facility and services must only be performed in your “office” area
• Examples of non-institutional settings: outpatient physician offices, separate office suites within institutions, and patient homes
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2. Services and supplies must be an integral, though incidental, part of the service of a physician in the course of diagnosis or treatment of an injury or illness.
– Physician must perform the initial service and initiate course of treatment
• Or, think of it as, the physician has seen that patient for this complaint or problem before
– Physician must be actively involved in patient’s treatment
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Hypo
• Patient X visits Doctor O at Ortho Practice who diagnoses patient with a sprained ankle on September 8th
• Patient X visits same Ortho Practice on September 13th and sees a nurse practitioner (“NP”) with questions related to the sprained ankle diagnosis
• May services performed by the NP be billed “incident to” Doctor O?– YES if all “incident to” requirements are satisfied
• What if Patient X returns to Ortho Practice in November and is diagnosed with a sprained wrist by the NP?– NO, this is a new diagnosis and Doctor O was not involved– Instead, NP may bill under their own NPI
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3. Services and supplies must be commonly furnished without charge or included in the bill of a physician.
– Must be business as usual for the physician’s office• Expense to the physician or other legal entity that bills for
the service • Administration of a drug that would be covered if purchased
by physician• Application of an antibiotic ointment and gauze following a
minor surgical procedure
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4. Services and supplies must be of a type that are commonly furnished in the office or clinic of a physician.
– Examples include:• Taking blood pressure/temperature• Giving injections like vaccinations• Changing wound dressings• Minor surgery• Setting casts• Evaluation and treatment of a patient’s condition• Gauze, ointments, bandages• Drugs that are not usually self-administered
– Stick to services appropriate to office settings and supplies that a physician would be expected to have on hand in their office
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5. In general, services and supplies must be furnished under the direct supervision of the “physician”.
– Direct supervision in an office setting means the “physician” is physically present and immediately available to give assistance and direction if needed throughout the service
• Note that this is different than state specific “supervision” or “collaboration” required for PAs, NPs, etc.
– Physician can be in a different room or area of the office, but must be in the office suite
– Exception for home visits to patients that are homebound in medically underserved areas
• In this scenario, general supervision is required (“physician” must order the services, maintain contact with NPP, and retain professional responsibility for the service)
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• Only the supervising physician may bill Medicare for incident to services.– Supervising physician’s NPI placed on Medicare
claim as rendering physician• In group practice, group practice is billing entity• No specific modifier required to indicate performance by
NPP– The physician supervising the NPP need not be the
same physician treating the patient more broadly. • In group practices, any physician member of the group can
supervise.• Solo practitioners must directly supervise care.
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• Designated care management services can be furnished under general supervision of the physician.– General supervision means physician controlled but
presence not required– Includes G0502, G0503, G0504, G0507, CPT code
99487 and CPT code 99489 • G0500 codes are for Behavioral Health Management
services• CPT codes are for Complex Care Management
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6. Services and supplies must be furnished by the physician, practitioner with an incident to benefit, or auxiliary personnel.
– “Practitioner with an incident to benefit”: a NPP who is authorized to receive payment for services incident to his or her own services. (Nurse Practitioner, Nurse Midwife, etc.)
– Auxiliary personnel (including NPPs): an individual who is acting under the supervision of a physician, regardless of whether the individual is an employee, leased employee, or independent contractor of the physician or of the legal entity that employs or contracts with the physician.
• Such individuals must not be excluded from any federally funded health care programs by the Office of Inspector General (OIG) or revoked by Medicare.
• Nurses, Clinical Social Worker, Physical Therapists, etc.
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7. Services and supplies must be furnished in accordance with applicable State law.• Ensure that each provider involved has proper
licensing and credentials and is performing work within his/her scope of practice
• Stricter law prevails between state and federal law
• Billing incident to is like threading a needle; tricky but doable.
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Example: Ohio Supervision Requirements
• Ohio has supervision/collaboration requirements that are different than the “incident to” direct supervision requirements
• Nurse Practitioners (“NPs”): NPs must collaborate with and enter into a Standard Care Arrangement (“SCA”) with a physician (MD or DO)
– “Collaborate”: The physician, who practices in the same specialty as the nurse, must be continuously available to communicate with the NP in person or electronically (does not have to be on site)
– Physicians may only have SCAs with five nurses working at one time• Physician Assistants (“PAs”): PAs must practice under the supervision,
control, and direction of a supervising physician and sign a Supervision Agreement
– Supervising physician must be physically present at office or continuously available by phone at a location from where the physician can reasonably assure proper care of patients
– Services of PA must be within normal course of practice and expertise of supervising physician and may not supervise more than five PAs working at one time
• To bill “incident to”, Physicians and NPPs must be working within their proper scope of practice and within “incident to” guidelines
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Supervision Example
• NP A treats established patient B for sprained ankle, following a treatment plan developed by Physician C.
• Physician C and NP A have signed a Standard Care Agreement and are providing services within their scope of practice.
• Physician C is not in the office suite but is available by telephone and e-mail, satisfying Ohio’s NP supervision requirements.
• Can NP A bill their services “incident to” Physician C?– NO, there was no direct supervision because Physician
C was not in the office suite– BUT, satisfies Ohio collaboration requirements
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8. A physician may be an employee or an independent contractor.
– Applies to both physicians and NPPs.– Could be part-time or full-time.– Employee: Paid wages or salary by the physician or practice
and considered to be employed for Social Security purposes (contributions and income taxes withheld)
– Leased employee: A non-physician working under a lease agreement with a physician where the physician or leasing entity exercises control over all actions of the leased employee
– Independent contractor: Individual performing work under contract with an entity for which that individual receives an IRS-1099 form
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9. Claims for drugs administered by a physician as defined in section 1861(r) of the Social Security Act to refill an implanted item of DME may only be paid under Part B to the physician as a drug incident to a physician's service under section 1861(s)(2)(A).
– These drugs are not payable to a pharmacy/supplier as DME under section 1861(s)(6) of the Act.
– When these drugs (like those administered through an infusion pump) are administered in the physician’s office to a beneficiary, the only way these drugs can be billed to Medicare is if the physician purchases the drugs from the pharmacy. In this case, the drugs are being administered “incident to” a physician’s service and pharmacies may not bill Medicare Part B under the “incident to” provision.
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“Incident to” Billing: Examples
Situation Performed by Billing
New patient NPP Must be billed under NPP’s NPI
Established patient with no new problems
NPP If “incident to” requirements are met, service may be billed under supervising physician’s NPI
Established patient with new problems
NPP Must be billed under NPP’s NPI
Established patient with new problems
NPP and Physician
If “incident to” requirements are met, service may be billed under supervising physician’s NPI.
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Medicaid and “Incident to”
• “Incident to” billing is a Medicare concept. Some Medicaid programs may have comparable practices. – Check your state law! Every state has supervision and billing
requirements but they may not be the same as incident to.• Ohio Medicaid does not have an “incident to” billing
practice comparable to Medicare. Instead, it has a statute called “Supervision of Professional Services”. This is really just the mechanism by which PAs can bill.
• Ohio also allows Medicaid reimbursement for non-MD and non-DO providers (like NPs), but the reimbursement policies and rates are set by the Medicaid state agency.
• Take away: No “incident to” billing in Ohio Medicaid.
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State Specific Laws
More State Law Examples
• California Code of Regulations § 9789.15.2 allows NPPs to be reimbursed at 100% of the Official Medical Fee Schedule (OMFS).– The statute generally mirrors Medicare’s incident to billing regulations
with some small variations– However, this regulation is under the Worker’s Compensation
regulations and only applies to providers working with injured workers• Texas Medicaid allows a physician to be reimbursed for the
services provided by a PA or APRN when the physician “made a decision regarding the patient’s care or treatment on the same date of services as the billable medical visit and documented that decision in the patient’s record.” TAC § 354.1062– Otherwise, the PA or APRN must bill for these services at their usual
reimbursement level• These are two regular state billing practices that are unrelated to
Medicare’s incident to billing regulations.– Any similarity between state law and Medicare is coincidental.
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Benefits & Noncompliance
Pros & Cons
• Pros– Higher reimbursement: 100% MPFS for services rendered by
NPP but billed by MD or DO• 85% MPFS if billed by some NPPs alone
– Higher margins for billing entity: NPPs generally earn lower salaries than physicians but can still bill for M.D./D.O. fees
• Cons– Compliance is tricky! Providers don’t understand all the
requirements and misuse it– Must pay attention to all the “incident to” requirements– Cannot use for new patients or established patients with new
problems– Tricky supervision requirements– May not be best use of the physician and NPPs time or skillset
(i.e. the “on-site” requirement limits activities)
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Noncompliance: OIG Concerns
• OIG Work Plans examine qualifications of NPPs performing “incident to” services
• Report on Prevalence and Qualifications of Nonphysicians Who Performed Medicare Physician Services - August 2009 – “‘Incident to’ services may be vulnerable to overutilization
and may put beneficiaries at risk of receiving services that do not meet professionally recognized standards of care”
– “Unqualified non-physicians performed 21% of the services that physicians did not perform personally”
• Lack of license, certificate, credentials, or training
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Noncompliance: False Claims Act
• Improperly billing “incident to” services could result in overpayments and the submission of false claims to Medicare and Medicaid
• The False Claims Act imposes liability on any person who:– Submits a claim to the federal government that they know is false;– Knowingly submits a false record in order to obtain payment from the
government; or– Obtains money from the federal government to which they are not
entitled.• False Claims Act penalties include:
– Min. per claim penalty: $11,181– Max. per claim penalty: $22,363– Possible treble damages
• The Civil Monetary Penalties Law imposes liability for similar violations to the False Claims Act– Penalties range from $10,000 to $50,000 per violation
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Overpayments
• If a provider discovers that they have submitted a claim for “incident to” that did not actually qualify, they must report this claim to the OIG using a self-reporting tool on their website (https://oig.hhs.gov/compliance/self-disclosure-info/protocol.asp) – If you do not report an overpayment, it is then considered a false claim
• Overpayments must be reported to OIG and returned within 60 days after the overpayment is identified or a penalty will be assessed
• Under the Civil Monetary Penalties Law, anyone who has knowledge of an overpayment and does not report and return the overpayment may be subject to penalties of up to $10,000 per claim and treble damages
• Providers may also be excluded from Medicare for not returning overpayments.
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Examples
• April 12, 2019 – Atrius Health, Inc. (Atrius) agreed to pay $222,535.47 62 for allegedly violating the CMP Law (Massachusetts). – OIG alleged that Atrius billed for certain injections of the drug
Neulasta as "incident to" conditions of coverage, but the drug was administered by patients, caregivers, or visiting nurses the patient’s home, rather than a physician or their NPP.
• April 10, 2019 – Carolina Eye Center, P.A. (CEC) agreed to pay $15,040.25 for allegedly violating the CMP Law (South Carolina). – OIG alleged that CEC billed Medicare for two physicians'
services claiming they were rendered incident to the services of a third physician when such services did not meet Medicare's incident to billing requirements and were not furnished by providers properly enrolled in Medicare.
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Examples (Part 2)
• Dec. 20, 2018 – Gibson Community Hospital, on behalf of itself and its wholly owned clinic (collectively, "GCH") agreed to pay $10,000 for allegedly violating the CMP Law (“Illinois”). – OIG alleged that GCH submitted claims to Medicare for incident-to
services provided by NPs when Medicare supervision requirements had not been met.
• Dec. 20, 2018 – David Hagan, M.D. (Dr. Hagan), Illinois, agreed to pay $24,027.10 for allegedly violating the CMP Law (Illinois). – OIG alleged that Dr. Hagan submitted claims to Medicare for incident-to
services provided by NPs when the Medicare supervision requirements had not been met.
• Dec. 27, 2018 – Williamson Medical, PLLC (Williamson) agreed to pay $20,274.78 for allegedly violating the CMP Law (New York). – OIG alleged that Williamson submitted claims to Medicare and Tricare for
incident-to services provided by a PA when Medicare and Tricare supervision requirements had not been met.
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Examples (Part 3)
• Aug. 31, 2018 – Daniel Umberger, D.O. and Osteopathic Treatment and Diagnostic Services, P.C. (collectively, "Osteopathic") agreed to pay $45,843.03 for allegedly violating the CMP (New York).
– OIG alleged that Osteopathic submitted claims for physical therapy services provided by physical therapists "incident to" physician services when a physician was not present on the premises. OIG also alleged that Osteopathic submitted claims for physical therapy services provided by physical therapy assistants "incident to" physician services that were actually supervised by a physical therapist, not a physician.
• April 20, 2017: David Yoon, M.D., David Yoon, MD PA, and Primary Care Physicians, Inc., agreed to pay $379,085 for allegedly violating the Civil Monetary Penalties Law (Florida)
– OIG alleged Dr. Yoon submitted false claims to Medicare for services rendered by NPPs as “incident to” when the “incident to” requirements under Medicare were not met.
• December 22, 2014: Mercer Osteopathic, Ltd. agreed to pay $49,598.10 for allegedly violating the Civil Monetary Penalties Law (Ohio)
– OIG alleged Mercer improperly billed Medicare for patient visits under a physician’s NPI when the services had been rendered by an NP and did not comply with Medicare's “incident to” requirements.
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More Examples
• December 16, 2015: Sports & Orthopedic Rehabilitation agreed to pay $19,095.50 for allegedly violating the Civil Monetary Penalties Law (Colorado)– OIG alleged that STAR submitted claims to Medicare for items
or services that were preferred by a physician’s assistant for “incident-to” services using a STAR physician’s provider identification number during times when the physician was not supervising the physician’s assistant in accordance with Medicare guidelines.
• July 17, 2013: North Arkansas Regional Medical Center (NARMC) agreed to pay $395,591.50 for allegedly violating the Civil Monetary Penalties Law. – The OIG alleged that NARMC improperly billed separately for
“incident to” services that were included in its Rural Health Center payment.
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Best Practices and
Resources
Best Practices
• Develop policies and procedures to ensure all “incident to” requirements are met
• Train (and retrain) providers and billing staff• Do exclusion screenings for Medicare (and state programs)• Do credentialing and licensing checks
– Do not allow someone who is not credentialed or licensed to bill, even if they are in the process of being credentialed or licensed
• Record compliance with “incident to” requirements in patient records– Record who performed “incident to” service– Record physician’s presence during service– Be sure that this is an established patient and an established condition– Signed by supervising physician and/or NPP
• Regularly audit compliance• Timely refund overpayments • If you still aren’t sure about your incident to billing practices, talk
to your lawyer!
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Resources
• Internet Only Manual (IOM) Publication 100-2, Chapter 15, Section 60.1– www.cms.hhs.gov/manuals/Downloads/bp102c15.pdf
• Section 1861(s)(2)(A) of the Social Security Act • 42 U.S.C. § 1395x(s)(2)(A) • 42 C.F.R. § 410.26• 42 CFR 410.71, 410.73-77
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