MedPAC Suggests Elimination of “Incident To” Billing for NPPs, APRNs, PAs, APPs, Physician Extenders, etc.

Incident-to billing for advanced practice providers or APPs (nurse practitioners, physician assistants, clinical nurse practitioners, nurse midwives, etc.) has been available to limited-license practitioners since 1998, and the rules for what is required to bill incident-to are clearly defined by the Centers for Medicare & Medicaid Services (CMS).

Yet this privilege, which enables a limited-license practitioner to bill under a physician and is paid at the full physician fee schedule (rather than 85 percent), is continually abused and used incorrectly. As a result, CMS is considering eliminating the ability for APPs to bill using incident-to provisions, at the urging of MedPAC (the Medicare Payment Advisory Commission).

Before we debate whether MedPAC has a valid point to its urging, let’s look at what is required to bill under incident-to provisions, under the current Medicare regulations. Keep in mind that these rules apply to Part B patients only. If a patient has Medicaid or Medicare Advantage or is not a Medicare patient, the rules for that patient’s insurance company must be determined before billing incident-to. Do not assume that the patient’s payor follows Medicare’s rules.

To bill incident-to, the following conditions must exist:

• The service must be provided in the office. Incident-to services may not be provided in a facility, the definition of which includes, but is not limited to, outpatient clinics, emergency departments, inpatient facilities, and skilled nursing facilities (SNFs).
• The APP must follow a plan of care established by the patient’s physician. This means that if the plan of care is changed (for example, changing the patient’s prescriptions), the plan of care is no longer being followed, and the visit no longer applies for incident-to billing.
• The APP must be under the direct supervision of a physician. This means there needs to be a physician in the office suite and immediately available; it does not mean that there is a physician on a different floor in the same building, in the hospital attached to the office building, or available by phone. The physician must be in the same office suite as the APP when the incident-to services are provided. Also:
  • The supervising physician does not have to be the physician who established the plan of care. It is the physician who is in the clinic and who will be signing off on the note.
  • A best practice would be for the APP to document in the chart: “Ðr. Smith in the office supervising today,” to establish the presence of the supervising physician.
  • The incident-to service is billed under the supervising physician, not necessarily the physician who developed the plan of care.

Another fatal error is billing the incident-to service under the patient’s physician and not under the supervising physician.

Never Assume

Do not assume that your Medicaid payor follows Medicare Part B just because Medicaid is part of CMS. Some states’ Medicaid programs, such as that of Kansas, do not allow incident-to billing of APPs. Kansas pays 75 percent of its fee schedule when an APP delivers a service. Billing an APP incident-to in Kansas, or in any other state with similar rules, is considered fraud.

Risky Business

As you can see, there are many ways in which visits can violate the incident-to rules. Without an audit, your Medicare carrier won’t know that the rules have been violated since a claim for an incident-to service looks exactly like a claim from the supervising physician. Audits are triggered when CMS sees a significant number of services for a single physician because both the provider and the APP are billing under the physician’s National Provider Identifier (NPI).

There is no modifier or other methods to indicate that a claim is coming from an incident-to provider. Some private payors, such as UnitedHealthcare, have created their own modifiers so that they can track incident-to usage. UnitedHealthcare Policy No. 2019R5009B provides that ”the SA modifier is a payable modifier, and should be used by the supervising physician on behalf of the Advanced Practice Health Care Providers.”

Because it is difficult to manage the correct billing of incident-to services, some practices have made the decision to accept the 15-percent loss for the few true incident-to services and always bill APP services under the APP’s own NPI. That way, they do not have to worry about complying with all of the billing requirements.

Stay tuned to see what is finally decided by CMS. I would expect a decision in the coming months, probably by 2021, with the new evaluation and management (E&M) guidelines soon to be ready to be rolled out.

To realize the benefits of incident-to billing, you must follow the rules precisely. There are seven basic incident-to requirements, as detailed in the Medicare Benefit Policy Manual, Chapter 15, Section 60:

1. Incident-to billing applies only to Medicare, and it does not apply to services with their own benefit category. Diagnostic tests, for example, are subject to their own coverage requirements. “Depending on the particular tests,” the Benefit Policy Manual explains, “the supervision requirement for diagnostic tests or other services may be more or less stringent than supervision requirements for services and supplies furnished incident to (a) physician’s or other practitioner’s services.” Similarly, pneumococcal, influenza and hepatitis B vaccines do not need to meet incident-to requirements.

   MLN Matters No. SE0441 elaborates:

   Must a supervising physician be physically present when flu shots, EKGs, laboratory tests, or X-rays are performed in an office setting, 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. They are not “incident-to” services and the “incident-to” rules do not apply.

2. The service billed incident-to must take place in a “noninstitutional setting,” which CMS defines as “all settings other than a hospital or skilled nursing facility.”

   Additionally, the Benefit Policy Manual allows, “hospital services incident to (a) physician’s or other practitioner’s services rendered to outpatients (including drugs and biologicals, which are not usually self-administered by the patient), and partial hospitalization services incident to such services may also be covered.”

3. Incident-to services cannot be rendered on the patient’s first visit, or if a change to the plan of care occurs. A Medicare-credentialed physician must initiate the patient’s care. If the patient has a new or worsened complaint, a physician must conduct an initial E&M service for that complaint and must establish the diagnosis and plan of care.
4. Subsequent to the encounter during which the physician establishes a diagnosis and initiates the plan of care, an NPP may provide follow-up care under the “direct supervision” of a qualified provider. Per the Benefit Policy Manual:

   “Direct supervision in the office setting does not mean that the physician must be present in the same room with his or her aide. However, the physician must be present in the office suite and immediately available to provide assistance and direction throughout the time the aide is performing services.”
   If auxiliary personnel perform services outside the office setting, e.g., in a patient’s home or in an institution (other than a hospital or SNF), their services are covered incident to a physician’s service only if there is direct supervision by the physician (e.g., the physician must be physically present to oversee the care).

   Any physician member of the group may be present in the office to supervise. The supervising physician does not have to be the physician who performed the initial patient evaluation.

5. A physician must “actively” participate in and manage the patient’s course of treatment. This requirement typically is defined by individual state licensure rules for physician supervision of NPPs.
6. Both the credentialed physician and the qualified NPP providing the incident-to service must be employed by the group entity billing for the service. If the physician is a sole practitioner, the physician must employ the NPP.
7. The incident-to service must be of a type usually performed in the office setting and must be part of the normal course of treatment of diagnosis or illness. The Benefit Policy Manual explains, “where supplies are clearly of a type a physician is not expected to have on hand in his/her office, or where services are of a type not considered medically appropriate to provide in the office setting, they would not be covered under the incident-to provision.”

Documentation Must Establish Incident-to Billing Requirements

Services meeting all of the above requirements may be billed under the supervising physician’s NPI, as if the physician personally performed the service. Documentation should detail who performed the service, and that a supervision physician was in the office suite at the time of the service.

For example, say a general practitioner diagnoses a Medicare patient with hypertension and diabetes in October and creates a plan of care. The patient returns for a follow-up visit in December, with the nurse practitioner. At the follow-up visit, the patient complains of knee pain. Although the physician is in the office, the nurse practitioner evaluates and treats the patient for the new problem of knee pain.

In this case, if the nurse practitioner had evaluated only hypertension and diabetes, for which there were an established diagnosis and plan of care, the service would meet incident-to requirements. But because the physician did not personally perform the initial service for the patient’s new complaint of knee pain, the service may not be reported as incident-to. Instead, the NP (if properly credentialed) would report the service to Medicare under his or her own provider ID.

Similarly, if a physician assistant sees Medicare patients in the office while the physician is at the hospital making rounds, incident-to billing is not appropriate, because the requirement for direct supervision hasn’t been met (the physician must be physically present in the office suite).

Programming Note:
Listen to Terry Fletcher report this story live today during Talk Ten Tuesday, 10-10:30 a.m. EST.