Operationalizing Compliance with Medicare s Incident-to Rules in Both Provider-Based. September Incident To" Coverage The.

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1 Operationalizing Compliance with Medicare s Incident-to Rules in Both Provider-Based and Freestanding Settings September 2008 Hugh Aaron, MHA, JD, CPC, CPC-H 1 Agenda Incident To" Coverage The Big Picture The Specific Incident To Conditions of Coverage Incident To Case Studies 2 Incident To" Coverage The Big Picture 3

2 The Big Picture Why Incident To Matters The Social Security Act provides that Medicare covers: hospital services... incident id to physicians' services rendered to outpatients services and supplies... furnished as an incident to a physician's professional service Social Security Act 1861(s)(2) 4 The Big Picture Why Incident To Matters (continued) Financial Ramifications Medically necessary services that t meet the incident to conditions of coverage generally qualify for Medicare payment 5 The Big Picture Why Incident To Matters (continued) Compliance Ramifications If a hospital or physician practice bills and If a hospital or physician practice bills and receives Medicare payment for services that failed to meet the incident to conditions of coverage, the hospital or practice may be subject to overpayment recoupment (or worse), unless the services qualify for coverage independently of incident to 6

3 The Big Picture When Must a Hospital Meet Incident To Whenever it wants Medicare to cover an outpatient hospital service (that is not otherwise covered under some other basis of coverage), such as Facility service associated with an ED visit (e.g., CPT codes ) or a clinic visits (e.g., CPT codes ) 7 The Big Picture When Must a Physician Practice Meet Incident To Whenever it wants Medicare to cover a service furnished in a physician practice setting rendered by someone other than the physician under who s billing number the service is being billed, such as A service furnished by a nurse practitioner or RN, but billed under a physician s billing number 8 The Big Picture When Is It Not Necessary to Meet Incident To When some other basis of Medicare coverage applies 9

4 The Big Picture There are actually two different incident to regulations 42 CFR applies to incident to services billed by a hospital ( 42 CFR applies to incident to services billed by a physician practice ( 10 The Big Picture Key differences between the hospital and physician versions of the incident to requirements Site of service Physician supervision 11 Specific Requirements for Incident To Coverage 42 CFR , Medicare Benefit Policy Manual, Chapter 6, and Chapter 15,

5 Specific Incident To Requirements Requirement 1: The Setting Requirement Incident to services billed by a hospital must be furnished by (or under arrangements made by) a hospital in a hospital or in a provider-based facility Incident to services billed by a physician practice must be furnished in a noninstitutional setting to noninstitutional patients 13 Specific Incident To Requirements Requirement 2: The Physician Initiation/Order Requirement In a hospital setting, the services must be furnished on a physician s order In a physician practice setting, the physician must perform an initial service 14 Specific Incident To Requirements Requirement 3: Physician Supervision For service billed by a hospital: On hospital campus currently not entirely clear Off hospital campus requires direct physician supervision (on the premises and available) For services billed by a physician practice: Requires direct physician supervision 15 (in the office suite and available)

6 Specific Incident To Requirements Requirement 4: Ongoing Physician Involvement For service billed by a hospital: The physician must personally see the patient periodically and sufficiently often to assess the course of treatment and the patient s progress and, where necessary, to change the treatment regimen 16 Specific Incident To Requirements Requirement 4: Ongoing Physician Involvement (continued) For services billed by a physician practice: The physician must perform subsequent services of a frequency which reflect his/her active participation in and management of the course of treatment 17 Incident To Case Studies 18

7 Case Study 1 A self-referred patient presented to the hospital ED with a new onset acute condition The patient t was triaged by a hospital RN The patient left the ED before being seen by a physician The hospital billed the FI for a level one ED visit 19 Case Study 2 A patient referred by a treating physician was seen by a RN in an on campus, providerbased clinic for medical management of a chronic condition No physician saw the patient and no physician was present anywhere in the clinic or in the immediate area The hospital billed the FI for a level one clinic visit 20 Case Study 3 A patient referred by a treating physician was seen by a RN in an off campus, providerbased clinic for medical management of a chronic condition No physician saw the patient, however, a hospital employed physician who had no relationship with the patient was reading s in her office in the clinic The hospital billed the FI for a level one clinic visit 21

8 Case Study 4 A patient referred by a treating physician was seen by a RN in an off campus, providerbased clinic for medical management of a chronic condition No physician saw the patient and no physician was present in the office suite, however, one of the patient s treating physicians was present in an adjacent office suite and available The hospital billed the FI for a level one clinic visit 22 Case Study 5 Established patient presented to a freestanding physician practice for a followup visit (subsequent to an initial physician service) The patient was seen by an NP A supervising physician was present in the office suite and available, but did not see the patient The physician practice billed the carrier for the NP s services under the supervising 23 physician s billing number Case Study 6 Established patient presented to a freestanding physician practice for a followup visit (subsequent to an initial physician service) The patient was seen by an NP No physician was present in the office suite, however, the supervising physician was immediately available by phone The physician practice billed the carrier for the NP s services under the supervising physician s billing number 24

9 Case Study 7 Established patient presented to a freestanding physician practice for treatment of a new onset acute condition The patient was seen by an NP A supervising physician was present in the office suite and available, but did not see the patient The physician practice billed the carrier for the NP s services under the 25 physician s billing number Case Study 8 An inpatient was seen in the hospital by a PA employed by the hospitalist physician group for a follow-up visit (subsequent to an initial physician service) The supervising hospitalist was present on the same floor, however, no physician saw the patient The hospitalist group billed the carrier for the PA s services under the supervising physician s billing number 26 Questions? 27

10 "Incident To" Supplemental Handouts - Page 1 Incident To Case Studies 18

11 "Incident To" Supplemental Handouts - Page 2 Case Study 1 A self-referred patient presented to the hospital ED with an new onset acute condition The patient was triaged by a hospital RN The patient left the ED before being seen by a physician The hospital billed the FI for a level one ED visit 19 Analysis (hospital incident to rule): There was no incident to coverage because there was no physician order (or any other physician participation) in the care. Teaching Point: Incident to coverage requires a physician order.

12 "Incident To" Supplemental Handouts - Page 3 Case Study 2 A patient referred by a treating physician was seen by a RN in an on campus, providerbased clinic for medical management of a chronic condition No physician saw the patient and no physician was present anywhere in the clinic or in the immediate area The hospital billed the FI for a level one clinic visit 20 Analysis (hospital incident to rule): The analysis of this case is not clear given the recent changes to the Medicare Benefit Policy Manual, Chapter 6, (See 6/23/08 from Hugh Aaron to Heather Hostetler at CMS) Teaching Point: Until further clarification is received from CMS, hospitals should consult their local FI/MAC for guidance on the level of physician supervision required when incident to services are furnished on a hospital campus.

13 "Incident To" Supplemental Handouts - Page 4 Case Study 3 A patient referred by a treating physician was seen by a RN in an off campus, providerbased clinic for medical management of a chronic condition No physician saw the patient, however, a hospital employed physician who had no relationship with the patient was reading s in her office in the clinic The hospital billed the FI for a level one clinic visit 21 Analysis (hospital incident to rule): This case appears to qualify for incident to coverage under 42 CFR and Medicare Benefit Policy Manual, Chapter Teaching Point: Under the hospital incident to regulations and guidance, direct supervision merely requires a physician to be present and on the premises of the location and immediately available to furnish assistance and direction.

14 "Incident To" Supplemental Handouts - Page 5 Case Study 4 A patient referred by a treating physician was seen by a RN in an off campus, providerbased clinic for medical management of a chronic condition No physician saw the patient and no physician was present in the office suite, however, one of the patient s treating physicians was present in an adjacent office suite and available The hospital billed the FI for a level one clinic visit 22 Analysis (hospital incident to rule): This encounter should qualify for incident to coverage. The fact that a physician was not present in the office suite should not disqualify this encounter from coverage because the hospital incident to rule merely requires a physician to be present on the premises. Teaching Point: Unlike the physician office incident to regulation, the hospital incident to regulation merely requires a physician to be present on the premises of the location and available. The physician does not have to be in the office suite. Although, some FIs may interpret premises to mean office suite. Hospitals may want to check with their local FI/MAC for clarification/guidance.

15 "Incident To" Supplemental Handouts - Page 6 Case Study 5 Established patient presented to a freestanding physician practice for a followup visit (subsequent to an initial physician service) The patient was seen by an NP A supervising physician was present in the office suite and available, but did not see the patient The physician practice billed the carrier for the NP s services under the supervising 23 physician s billing number Analysis (physician office incident to rule): This case qualifies for incident to coverage because this was a follow-up to a physician initiated course of treatment and the NP services were furnished under direct physician supervision. Teaching Point: The is a baseline case demonstrating a classic incident to scenario in a physician office.

16 "Incident To" Supplemental Handouts - Page 7 Case Study 6 Established patient presented to a freestanding physician practice for a followup visit (subsequent to an initial physician service) The patient was seen by an NP No physician was present in the office suite, however, the supervising physician was immediately available by phone The physician practice billed the carrier for the NP s services under the supervising physician s billing number 24 Analysis (physician office incident to rule): The was no incident to coverage because there was no direct physician supervision. The supervising physician must be present in the office suite. Phone availability is not sufficient. Teaching Point: Incident to coverage requires a supervising physician to be present in the office suite and available when the non-physician services are furnished.

17 "Incident To" Supplemental Handouts - Page 8 Case Study 7 Established patient presented to a freestanding physician practice for treatment of an new onset acute condition The patient was seen by an NP A supervising physician was present in the office suite and available, but did not see the patient The physician practice billed the carrier for the NP s services under the physician s billing number 25 Analysis (physician office incident to rule): The was no incident to coverage because there was no initial physician service to initiate the course of treatment. Teaching Point: For a new condition, a physician must provide the initial service.

18 "Incident To" Supplemental Handouts - Page 9 Case Study 8 An inpatient was seen in the hospital by a PA employed by the hospitalist physician group for a follow-up visit (subsequent to an initial physician service) The supervising hospitalist was present on the same floor, however, no physician saw the patient The hospitalist group billed the carrier for the PA s services under the supervising physician s billing number 26 Analysis (physician office incident to rule): There is no incident to coverage because the PA services were furnished in an institutional setting. In addition, the services did not qualify for split/shared billing because the physician did not provide any face-to-face services to the patient. Teaching Points: 1. There is no incident to under the physician office incident to rule in an institutional setting. 2. Split/shared billing is only permitted when the physician provides face-to-face E/M services to the patient.

19 "Incident To" Supplemental Handouts - Page 10 Hugh Aaron From: Sent: To: Cc: Hostetler, Heather C. (CMS/CMM) [Heather.Hostetler@cms.hhs.gov] Monday, June 23, :39 AM Hugh Aaron Rinkle, Valerie Subject: RE: Incident To Manual Section Thank you, Hugh. We ll consider your suggestions. Heather Hostetler, J.D. Health Insurance Specialist CMS/CMM/Hospital and Ambulatory Policy Group Division of Outpatient Care From: Hugh Aaron [mailto:haaron@hcpro.com] Sent: Monday, June 23, :04 AM To: Hostetler, Heather C. (CMS/CMM) Cc: Rinkle, Valerie Subject: Incident To Manual Section Hi Heather. We met at the recent AHLA Medicare/Medicaid conference in Baltimore. I was pleased to see the revision last week to the incident to manual instructions. However, I was surprised that the revision does not clarify the question Valerie Rinkle raised at the AHLA conference relating to whether the direct supervision requirement still applies if the services are furnished at a department of the hospital which has provider-based status and is located on the hospital premises. Also, the fact that the term hospital premises is undefined creates some additional confusion. CMS could easily resolve these remaining issues by: 1. Replacing the term hospital premises with the term hospital campus. As you know, the term campus is defined in the provider-based regulations (42 CFR ) as the physical area immediately adjacent to the provider s main buildings, other areas and structures that are not strictly contiguous to the main buildings but are located within 250 yards of the main buildings, and any other areas determined on an individual case basis, by the CMS regional office, to be part of the provider s campus. 2. Explicating stating that the direct supervision requirement only applies to off campus provider-based facilities. In summary, my suggested revision to the paragraph in question is as follows: The physician supervision requirement is generally assumed to be met where the services are performed on the hospital campus premises. The hospital medical staff that supervises the services need not be in the same department as the ordering physician. However, if the services are furnished at an off campus department of the hospital which has provider-based status in relation to the hospital under 42 CFR of the Code of Federal Regulations, the services must be rendered under the direct supervision of a physician. Direct supervision means the physician must be present and on the premises of the location and immediately available to furnish assistance and 6/24/2008

20 "Incident To" Supplemental Handouts - Page 11 direction throughout the performance of the procedure. It does not mean that the physician must be present in the room when the procedure is performed. I hope this is helpful. Hugh Aaron Senior Advisor HCPro, Inc cell 6/24/2008

21 "Incident To" Supplemental Handouts - Page 12 Hugh E. Aaron, MHA, JD, CPC, CPC-H Senior Advisor Phone: (804) haaron@hcpro.com Hugh is a Senior Advisor with HCPro, Inc. HCPro is a national leader in providing information to the healthcare community on compliance, regulation, and management. The company publishes a wide array of newsletters and books, produces audio conferences, classroom training and other live events, and has an extensive consulting practice. Prior to joining HCPro, Hugh was president of HRAI Coding Specialists, LLC, which was acquired by HCPro in June Hugh was the original developer of the Certified Coder Boot Camp Original Version, the Medicare Boot Camp Hospital Version, and the Medicare Boot Camp Professional Services Version courses. He currently serves as an instructor for the Medicare Boot Camp Hospital Version and the Medicare Boot Camp Professional Services Version. Hugh formerly practiced law in the health law department at McGuire, Woods, Battle & Boothe, a full service, international law firm. He also founded and practiced law for ten years with Healthcare Regulatory Advisors, Inc., a law firm that focused exclusively on health law matters. Prior to entering law school, Hugh held a variety of management positions within the health care industry including Regional Operations Director for a national medical practice management firm. Hugh is accredited as both a Certified Professional Coder (CPC) and as a Certified Professional Coder - Hospital (CPC-H) by the American Academy of Professional Coders. Hugh has successfully completed the American Academy of Professional Coders Professional Medical Coding Curriculum Instructor Approval Program and has been approved to teach the Professional Medical Coding Curriculum. Hugh serves on the Legal Advisory Board of the American Academy of Professional Coders and is a former officer and director of the Virginia Chapter of the Healthcare Financial Management Association. Hugh is an Adjunct Assistant Professor of Law at the University of Richmond School of Law where he teaches Health Care Regulation. He also an Affiliate Assistant Professor in the Department of Health Administration at Virginia Commonwealth University (Medical College of Virginia Campus). Hugh has served on the faculty for the American Health Lawyers Association s annual Medicare and Medicaid Payment Institute since Hugh earned his Juris Doctor degree (cum laude) from the University of Richmond where he served as an editor of the Law Review and was a member of the McNeill Law Society (academic honor society). He also holds a Master of Health Administration degree from the Medical College of Virginia and a Bachelor of Business Administration degree from Christopher Newport College.