Splitting Hairs: “Incident to” or Shared Visit

CMS has specific guidelines when defining “incident to” and shared visits.

Recently, I was working with a client to help them understand “incident to” billing. We were discussing a situation in which a physician and a physician assistant each saw the patient as part of a visit in the clinic.  The clinic administrator referred to it as a shared visit. I totally get where she’s coming from. The physician and non-physician practitioner each did part of this clinic encounter. It certainly sounds like a shared visit. 

But it’s not.  Why? 

Because when the Centers for Medicare & Medicaid Services (CMS) issued the regulation creating shared visits the agency defined the term “shared visit” in a very narrow and specific way. It only applies in settings where the incident to benefit is inapplicable.   

Shared visits were created because there are limits on where incident to billing can be used. 42 CFR § 411.15 prevents the use of incident to billing in the inpatient or outpatient hospital setting. In addition, 42 CFR § 410.26(b) says incident to services must be furnished in a noninstitutional setting to noninstitutional patients. 

In the clinic, one can use incident to billing. But in a facility like a hospital or skilled nursing facility (SNF) a professional may not bill for services incident to their work. (In a terribly confusing twist, many hospital services are covered as “incident to.”  But there it is the hospital, rather than the professional who is billing.) 

When CMS issued 42 CFR § 415.140, the shared visit regulation, it defined a split or shared visit as an evaluation in management (E&M) visit in the facility setting. The bottom line is that split shared visits are exclusively for facilities, and any visit occurring in a clinic is, by definition, not a split or shared visit. 

A physician and an NPP can “share,” in the conventional sense, work in the clinic, but for Medicare purposes it is not a shared visit. That means none of the requirements of a shared visit, including the requirement to submit the claim in the name of the professional who performed the substantive portion of the exam, apply in the clinic.

On a somewhat related note, in non-pandemic times, to bill “incident to” in the clinic setting the supervising physician must be present in the office suite. It’s easy to forget that during the public health emergency (PHE), CMS allows the supervising physician to be offsite as long as they are available through technology that includes both audio and visual capabilities. During the PHE, as long as the supervising physician has a smartphone, they can be literally any place in the country and still be supervising the service. I almost said they could be literally any place in the world. And I think that might arguably be true, but since Medicare excludes services provided outside of the United States, I probably would not risk having my supervising physician be abroad. If we want to go into a rabbit hole, we could explore the fact that Medicare takes the position that supervision isn’t a service. 

As a result, if I had a situation in which my supervising physician was abroad, I would not be recommending a refund. It’s a situation I could easily defend, but I wouldn’t recommend creating the need to defend it. Many people are bothered when I recommend the changing a practice prospectively but indicate that a refund for the past is not necessary. 

I’ll talk more about that in a future article.   

Programming note: Listen to healthcare attorney David Glaser’s live reports, “Risky Business,” every Monday on Monitor Mondays, 10 Eastern.


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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