Steve LeFar. 9th Annual Survey. Earn CEU credit. Equal access for people with disabilities. Medicare hospital Outpatient Prospective Payment System

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1 Volume Nine Number Four Published Monthly Earn CEU credit see insert Meet Steve LeFar President of MediRegs page 16 Special Focus: 9th Annual Survey Equal access for people with disabilities page 4 Also: Medicare hospital Outpatient Prospective Payment System page 11

2 Non-physician practitioners: Stay out of the enforcement spotlight Editor s note: Martie Ross is an attorney with the law firm of Lathrop & Gage L.C. She may be reached by telephone in Overland Park, Kansas at 913/ or by at mross@lathropgage.com. The role played by non-physician practitioners (NPPs) in physician practices and other settings has been the subject of recent government investigations. Additionally, the 2007 OIG Work Plan lists incident to billing as a target for review. As the enforcement spotlight begins to shine on NPPs, compliance professionals should evaluate the role these practitioners play in their organizations. Who s who The Medicare definition of physician includes doctors of medicine, osteopathy, dental medicine, dental surgery, podiatric medicine, and optometry; licensed chiropractors; and residents and interns. A physician must obtain a Medicare provider number to bill for services. Certain NPPs can obtain their own provider numbers and bill Medicare directly. These include mid-level providers [i.e., nurse practitioners, clinical nurse specialists, certified nurse-midwives, and physician assistants (PAs)] as well as certified registered nurse anesthetists and anesthesiology assistants (collectively, CRNAs), physical and occupational therapists, clinical and non-clinical psychologists, clinical social workers, audiologists, and registered dieticians/nutritional professionals. By Martie Ross Other NPPs cannot obtain Medicare provider numbers, and their services can be billed to Medicare only if the incident to requirements are met. This second category includes, but is not limited to, registered nurses, medical assistants, physical and occupational therapy assistants, speech-language pathologists, audiologists, and respiratory therapists. Scope of practice An NPP cannot provide and a physician cannot direct an NPP to provide any service outside his or her scope of practice or demonstrated competence. An NPP s scope of practice is dictated by (1) state laws and regulations, (2) policies adopted by the state agency that regulates such providers, (3) the community standard of care, and (4) the NPP s training and experience. Most states also require some level of physician oversight or supervision for those NPPs who function as physician extenders (i.e., mid-level practitioners and CRNAs). Additionally, Medicare requires: (a) a nurse practitioner and a clinical nurse specialist to have a written collaborative practice agreement with a physician; (b) a PA to practice under the general supervision of a physician, (i.e., the supervising physician must be immediately available, but not necessarily physically present to consult with the PA); and (c) a CRNA to provide anesthesia under the supervision of the operating practitioner or an anesthesiologist who is immediately available if needed, although a state may opt out of this requirement. The consequences of an NPP providing services outside his or her scope of practice or without proper physician oversight or supervision include: n malpractice claims against the NPP and/or the supervising physician; n negligent supervision claims against the supervising physician; and n disciplinary action against the NPP and/or the supervising physician. Also, claims submitted to Medicare for such services constitute false claims, exposing the person or entity submitting the claim to significant liability. NPP services billed under a physician s provider number A physician cannot bill Medicare for services provided by an NPP, unless the requirements for incident to billing are satisfied or the service constitutes a split or shared visit. Money provides the motivation to bill NPP services under a physician s provider number. Medicare pays 80% of the physician fee schedule amount for services billed under a physician s provider number (the fee schedule amount ); the remaining 20% is the beneficiary s co-payment obligation. With a few exceptions, services billed under an NPP s provider number are paid a percentage of the fee schedule amount, with a corresponding reduction in the co-payment amount. No payment is available for services provided by an NPP who does not have a provider number unless the service can be billed incident to. Incident to billing for E&M services The rules relating to incident to billing for evaluation and management (E&M) services Continued on page 48 47

3 Non-physician practitioners: enforcement spotlight...continued from page 47 provided by NPPs are very specific, and great care must be taken to comply with each requirement. 1. The service must be provided in a physician clinic. E&M services provided to a hospital inpatient or in a hospital outpatient department (including a provider-based clinic), rural health clinic, federally-qualified health center, skilled nursing facility, or nursing home cannot be billed incident to. Services provided in a patient s home may be billed incident to, but the physician must be present when the service is delivered. 2. The service must be provided to an established patient. Medicare defines established patient as one who has received any face-to-face service from the physician or another physician practicing in the same specialty in the same group within the previous three years. 3. The service must be provided pursuant to an established plan of care. Services billed incident to cannot involve diagnosis or treatment of new problems. For example, a physician treats a patient for high blood pressure and schedules follow-up appointments with an NPP. At one such visit, the patient complains about ear pain. If the NPP treats this new problem, the visit can be billed incident to only if the NPP s work relating to the ear pain is not counted in determining the level of service. If the visit is billed under the NPP s provider number, all of the work performed may be considered in assigning the level of service. Counting all of the NPP s work in assigning the level of service - including the work related to the ear pain - and billing the service under the physician s provider number would constitute upcoding, given that an NPP s services cannot be billed incident to unless furnished pursuant to an established plan of care. In addition to establishing the plan of care, Medicare requires the physician remain involved in the patient s care. The rules, however, do not specify how often the physician must see the patient. 4. A physician must be present in the same suite of offices and immediately available to assist the NPP while the service is being provided. While he or she does not have to be in the same room, a physician s presence in an adjacent building or an area in the same building not occupied by the practice is not sufficient. Claims for incident to services must be submitted under the provider number of a physician who was present in the office at the time the service was provided, not the NPP s supervising physician (as defined by state law) or the physician who established the patient s plan of care. In the course of a single day, an NPP may provide services billed under his or her own provider number as well as services billed under several different physicians provider numbers depending on who was present in the office at the time the NPP saw a particular patient. A practice must maintain adequate documentation to prove the physician under whose name a service was billed was present when it was provided. 5. The NPP must be a cost to the person or entity that bills for the service. Stated another way, there must be an employment or independent contractor relationship between the NPP and the physician or the entity to which the physician has reassigned his or her billing rights. Medicare imposes two additional restrictions: (1) consultations and (2) visits billed based on time spent on counseling or coordination of care cannot be billed incident to. Bottom line: established patient outpatient visits, using codes CPT , are the only E&M services that can be billed incident to. Medicare advises that E&M services provided by mid-level practitioners should be billed at the highest level supported by the documentation, assuming such services are within the mid-level s scope of practice. Services provided by other NPPs, however, can be billed under code only. Split visits Occasionally, a physician and an NPP will split an E&M service, with the physician performing some of the critical elements and the NPP performing others. So long as the incident to requirements are satisfied, the service may be billed under the physician s provider number. If, however, the service is a consultation or a new patient visit, or the physician is not present when the NPP sees the patient, the service cannot be billed incident to. It may be billed under the physician s or the NPP s provider number based solely on the work performed by that provider. One exception: a physician may take credit for a review of systems and past, family, and social history documented by a third party (including the patient) so long as the physician documents his or her review of that information. One cannot avoid this rule by claiming the NPP is merely scribing for the physician, (e.g., conducting a preliminary exam outside the physician s presence which the doctor then reviews and, if necessary, supplements). According to Medicare, an NPP may scribe only if the physician is present and directing the NPP to document certain information. An NPP may conduct an initial exam outside the physician s presence, but his or her documentation cannot be considered in determining the level of service. Shared visit rule The shared visit rule is a variation on incident to billing that applies to E&M services 48

4 performed in a hospital. An E&M service (other than a consultation) provided to an inpatient or emergency room patient can be billed under a physician s provider number even if an NPP provides most of the service if the following conditions are met: (1) the physician and the NPP are part of the same group practice; (2) the physician provides some face-to-face portion of the service; and (3) the physician personally and contemporaneously documents that portion of the service. The level of service is based on the combined work of the physician and the NPP on the same day. Incident to billing for other NPP services Services provided by physical and occupational therapists in a physician s office may be billed incident to if the aforementioned requirements are satisfied. Services provided by assistants, aides, athletic trainers, massage therapists, recreation therapists, or kinesiotherapists, however, cannot be billed under a physician s provider number. Speech and respiratory therapy services provided in a physician s office must satisfy the incident to requirements to be billed to Medicare. Speech and respiratory therapists are not eligible for their own provider numbers, although Medicare rules set forth specific qualifications a person must satisfy to provide these services as incident to. Other services furnished in a physician office, including injections, venipuncture, and cardiac rehabilitation must be provided in compliance with the incident to requirements to be billed to Medicare. Services which are part of a separate benefit category, such as vaccinations and diagnostic tests, cannot be billed incident to. As confusing as it sounds, the services of an NPP may be provided incident to the services of another NPP. For example, if a nurse performs an injection when no physician is present, that service can be billed under the provider number of a nurse practitioner who was present at the time. Medicare would pay for the service at the rate a nurse practitioner not a physician would receive for such service. Keep in mind, the NPP performing the service and the physician or NPP under whose provider number the service is billed must both be qualified under state law and Medicare rules to perform the service; incident to billing cannot be used to circumvent restrictions on a provider s scope of practice or other Medicare requirements. Similarly, incident to billing cannot be used to bill Medicare for services provided by a non-participating physician or excluded provider. NPPs billing independently An NPP who is eligible for and obtains his or her own Medicare provider number can bill for services under that number, so long as certain regulatory requirements are satisfied. Mid-level practitioners. Services billed under a nurse practitioner s or clinical nurse specialist s provider number are paid at 85% of the fee schedule amount. The beneficiary s co-payment obligation also is reduced by 15%. Physician assistants also are paid at 85% of the fee schedule amount for outpatient services and assisting at surgery, and 75% for all other services provided in a hospital. Medicare pays 65% of the fee schedule amount for services billed by certified nurse mid-wives. Adjustments are made to the global fee paid to a nurse-midwife based on the level of physician involvement in the care of the obstetric patient. To the extent permitted under applicable state law, mid-level practitioners can order physical therapy, occupational therapy, and speech pathology services. They can order and perform diagnostic tests, but cannot provide the supervision required for such tests under the Medicare rules. Mid-level practitioners can perform consultations and bill time-based codes for counseling and coordination of care even though these services cannot be billed incident-to. Special rules govern mid-levels provision of services for home health and hospice patients and residents of skilled nursing facilities and nursing homes. These rules must be reviewed carefully before claims are submitted for such services. CRNAs. For anesthesia services, a CRNA is paid based on a conversion factor multiplied by the sum of allowable base and time units. If a single anesthesia procedure involves both a physician medical direction service and the services of a medically-directed CRNA, each receives 50% of what he or she would have received for providing the service alone. For other medical and surgical services (e.g., catheter insertion, pain management, emergency intubation), Medicare pays CRNAs the fee schedule amount for the service provided. Physical and occupational therapists in private practice. Medicare does not discount payments made to physical and occupational therapists for services billed under their provider numbers; the same payment is made for services billed incident to. A pysical Therapist (PT) or Occupational Therapist (OT) may bill under his or her provider number for services provided by a physical therapy assistant or occupational therapy assistant, respectively, if the therapist is in the same suite of offices at the time the assistant Continued on page 55 49

5 Non-physician practitioners: enforcement spotlight...continued from page 49 already in place in their offices. A donation of a duplicate item or service will be considered a kickback or referral fee under the Stark Law and federal Anti-kickback Statute. Another possible complication that donors may face is ensuring software interoperability. This requirement may delay the provision of the technology to the various medical health care providers, as permissible under the law. The software must be approved by the Secretary at least 12 months prior to the delivery to each recipient. n Mr. Perling expresses his appreciation to Vanessa Serrano, law student at the Shepard Broad School of Law at Nova Southeastern University, for her assistance in preparing this article Fed. Reg. at 45140, (Aug. 8, 2006) Fed. Reg. at 45140, Fed. Reg. at 45140, Fed. Reg. at 45140, Fed. Reg. at 45140, Fed. Reg. at 45140, Fed. Reg. at 45110, (Aug. 8, 2006) Fed. Reg. at 45110, Fed. Reg. at 45110, Fed. Reg. at 45110, Fed. Reg. at 45110, provides the service pursuant to an established plan of care. A therapist cannot bill for services provided by other NPPs, (e.g., aides, athletic trainers). Audiologists. Audiologists can bill Medicare directly for diagnostic tests ordered by physicians, and Medicare pays the fee schedule amount for these services. Because these diagnostic services qualify for their own benefit category, it is not appropriate to bill these tests incident to. Registered dietitians/nutritional professionals. The only service for which these providers can bill Medicare directly is medical nutrition therapy furnished to patients with diabetes or renal disease when a referral is made by a physician. Medicare pays 85% of the fee schedule amount for these services. Because registered dietitians and nutritional professionals are the only providers eligible for Medicare reimbursement for this service, medical nutrition therapy cannot be billed incident to. Mental health professionals. Medicare pays the fee schedule amount for services provided by clinical psychologists in private practice. A clinical psychologist is one who holds a doctoral degree in psychology and is licensed or certified by the state in which he or she practices. Outpatient services provided by clinical social workers are paid at 75% of the fee schedule amount. Clinical social workers services provided in a Medicare-participating hospital or skilled nursing facility, as well as certain services furnished to dialysis facility patients, are not covered under Part B. Medicare requires clinical psychologists and clinical social workers to request permission from the patient to consult with the patient s primary care physician. If permission is granted, the provider must make a good faith effort to communicate with that physician. A non-clinical psychologist practicing independently can bill Medicare for diagnostic testing services ordered by a physician. Medicare pays the fee schedule amount for these services. Other payors This article focuses exclusively on Medicare rules. Other payors impose less-restrictive requirements for incident-to billing, while others do not permit such billing. Still other payors do not pay for services provided by NPPs. If you have any questions concerning a particular payor s policy, you should request clarification prior to submitting claims for such services. n Full Name: Title: Organization: Address: City/State/Zip: Telephone: Fax: Complete this coupon to order Compliance Today (CT) HCCA individual membership costs $295; corporate membership (includes 4 individual memberships, and more) costs $2,500. CT subscription is complimentary with membership. HCCA non-member subscription rate is $295/year. Payment enclosed Pay by charge: AmEx MasterCard Visa Card #: Exp. Date: Signature: Please bill my organization: PO# Please make checks payable to HCCA and return subscription coupon to: HCCA, 6500 Barrie Road, Suite 250, Minneapolis, MN