“Incident to:” Incidentally Here Are the Latest Changes

“Incident to:” Incidentally Here Are the Latest Changes

The changed requirements for supervising services that are “incident to” a physician’s continue to elude many “experts” in health law. Two weeks ago, I saw an article by a lawyer at one of the largest health law firms in the country describing a recent fraud investigation involving incident-to billing. The article indicated that a supervising physician must be present in the office suite. 

That absolutely used to be true. And it used to be somewhat confusing because of the absence of a definition for the term “office suite.” Did the supervisor need to be on the same floor? Reachable within 30 seconds? A minute? We didn’t know. But fortunately, for the time being, we also don’t care. 

At least through the end of 2024, a physician can supervise services incident to his or her work by being available through a smart phone or other device with both audio and visual communication.

Since I have had at least three phone calls in the last couple of weeks in which people were unaware of this change, I am going to risk redundancy by reiterating this important point.

Physicians can supervise incident-to services while at lunch, or on vacation, as long as they are immediately available by video call. To be clear, they don’t actually have to place the call, and if there is a call, audio-only is fine if they have video capability. This means that they can’t be considered “available” on a plane, or while deep-sea diving, or anytime they couldn’t take a video call. But the rest of the time, they can be supervising. 

Since we are talking about “incident to,” I will also visit a related topic: the ability to credit physicians for work that they supervise. Under Stark, a physician can get credit for their own personally performed work, and if they are part of an entity that qualifies as a group practice under Stark, they can also receive credit for services incident to their work. For example, it is reasonable to credit a physician in the compensation formula if a physician assistant (PA) or nurse practitioner (NP) sees a patient billed under that doctor’s name. Similarly, physicians could receive credit for infusions or therapy visits that meet the incident-to requirements.

Note that the physician should not be credited for any diagnostic tests like labs or imaging. The Centers for Medicare & Medicaid Services (CMS) takes the position that diagnostic tests have their own benefit in the Social Security Act, and when an item or service has its own benefit, it cannot be provided incident to. That means physicians cannot receive credit for laboratory or imaging services, even if the physician is supervising the testing. Similarly, immunizations have a separate benefit in the Medicare statute, so I would not credit physicians for vaccine administration.

Finally, a quick reminder that the incident-to benefit is not available within the hospital. This gets extraordinarily confusing, because many hospital services are in fact billed “incident to,” but it is a different sort of incident to, and Medicare’s public position is that physicians can never receive credit for a service in the hospital unless the physician has personally performed that service. A shared visit can be considered personally performed by the physician for purposes of productivity credit.

So, you can supervise incident-to services remotely. But remember, if the physician is in a situation where they hear Sheena Easton singing, “I call you on the telephone, but you’re never home; I gotta get a message to you,” they can’t bill incident to because they have to actually answer, and moreover, if it is just the plain old telephone, that is not good enough. You need to have visual capabilities – even if you do not use them. 

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David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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