Incident-to: Requirements Continue to Change
Over the years, the Centers for Medicare & Medicaid Services (CMS) has developed and revised the regulations regarding compliance relative to incident-to billing.2 Currently, to bill as incident-to, the services and supplies are ones that are commonly furnished in a physician’s office or clinic by auxiliary personnel while under the “direct” supervision of the physician. Auxiliary personnel means any individual who is acting under the supervision of a physician, regardless of whether the individual is an employee, leased employee, or independent contractor of the physician, or of the legal entity that employs or contracts with the physician.3 CMS notes that the “supervising” physician may be an employee, leased employee, or independent contractor of the legal entity billing and receiving payment for the services or supplies.4
One key factor in determining compliance with incident-to billing is that the services or supplies that are rendered by the auxiliary personnel to the supervising physician must be an incidental part of the treatment of the patient. CMS defines direct supervision to mean the “supervising” physician must be in the same office suite as the auxiliary personnel, not in the next building, on a different floor, or in a different suite.5
Nuances in incident-to billing compliance are evident in simple everyday practice. For example, a physician might render a physician’s service that can be covered incident-to even though another service furnished by an NPP as incident-to the physician service might not be covered. This can occur during an office visit where a physician’s diagnosis of a medical problem and ensuing course of treatment would be covered incident-to, even if, during the same visit, an NPP performs a noncovered service, such as acupuncture. Assuming the acupuncture was not part of the physician’s treatment plan, the acupuncture will be reimbursed and billed at 85 percent of the NPP’s fee schedule because that acupuncture service was not part of the treatment plan and work up the physician performed during that office visit. Remember, incident-to requires the services to be “incidental” to the physician service, which means part of the physician’s personal services during diagnosis or treatment of an injury or illness.6
CMS provides that the physician must perform the initial visit on each new patient to establish the physician-patient relationship as well as a treatment plan for that patient.7 The NPP can bill incident-to after the initial treatment plan has been set and during a split/share initial evaluation and management (E/M) visit. Allowing a nonphysician provider to bill a split/share as incident-to during an initial E/M visit has created much confusion regarding compliance.
Split/Shared – Incident-to
What is a split/shared E/M visit? A split/shared E/M visit is defined by Medicare Part B payment policy as a medically necessary encounter with a patient where the physician and a qualified mid-level provider each personally perform a “substantive portion” of an E/M visit face-to-face with the same patient on the same date of service. A substantive portion of an E/M visit involves all or some portion of the history, exam, or medical decision-making key components of an E/M service. The physician and the qualified mid-level must be in the same group practice or be employed by the same employer.
Interestingly, the Medicare Claims Processing Manual (MCPM) makes note of the location of the split/shared E/M visit; however, the section addressing split/shared E/M visits, MCPM Ch12 Sec 30.6.1 (H), is left blank. Therefore, a provider needs to review the local carrier determination (LCD) which is information issued by the applicable Medicare Administrative Contractor (MAC) (formerly known as fiscal intermediaries) for more information. The LCDs are guidelines that are released by the MACs in the various Medicare jurisdictions on policies regarding processing claims, requirements for claims, and the like. For example, a review of MAC Novitas’ LCD on split/shared E/M visit confirms the following:
When an E/M service is performed in the hospital inpatient/hospital outpatient or emergency department and is shared between a physician and a NPP from the same group practice, the service may be billed as a split/shared E/M service. The split/shared service may be reported to Medicare, based on the combined documentation, using either the physician's or the NPP's Unique Physician Identification Number (UPIN), Provider Identification Number (PIN), and National Provider Identifier (NPI) number.8 If the E/M service is provided in the office/clinic setting and the E/M service is a shared/split encounter between the physician and the non-physician provider (NP, PA, CNS or CNM), then the service is considered to have been performed “incident to,” if the requirements of “incident to” are met, e.g., the physician has to do the initial evaluation and periodic evaluations to show that he or she is still involved in the case.
So this is how Novitas would apply a split/shared claim that was billed incident-to. However, another MAC might apply something different.
In general, to claim the service under the physician’s UPIN/PIN/NPI number (incident-to), the physician must meet multiple requirements. Those requirements are:
- The physician must provide a face-to-face encounter with the patient
- The physician must document at least one element of the history, exam and/or medical decision making component of the E/M service
- The physician must legibly sign the medical record to justify his/her involvement in the patient care; and
- The physician and the NPP must be actively involved in the Medicare Program and have a valid UPIN/PIN/NPI number for reporting purposes.
It is not sufficient for the physician to simply document “seen and agree” or simply countersign such as an attestation. The physician must document what he/she personally performed during the E/M service. If none of the above apply, and are not documented, the service must be reported using the nonphysician NPI and payment will be made at 85 percent of the physician’s fee schedule.
However, split/shared incident to billing is a nuance as compared to billing APPs’ services after the treatment plan has been established by the physician. This is because the split/shared billing is being done at the time the physician is establishing the treatment plan for the patient, not after the treatment plan has been established. As such, additional requirements are needed for the practice to be able to bill that E/M service as incident-to the practice. A review of the LCD above confirms that physicians and nonphysician providers can bill incident-to if both are doing the initial E/M visit and document accordingly. Moreover, incident-to in a split/shared E/M visit is only allowed in certain settings: inpatient/outpatient/emergency department/office or clinic setting. Split/shared E/M incident-to is not allowed for critical care services or procedures or at a skilled nursing facility (SNF) or a nursing facility (NF).
Compliance Concerns with Incident-to
It is important for practice managers and their counsel to consistently review their compliance with the incident-to billing guidelines as provided by CMS and the LCDs from the MACs when attempting to capture the 100 percent reimbursement for services provided by auxiliary personnel and their practice, such as in split/shared E/M services. It is critical that practices are aware of these guidelines in order to comply with incident-to and capture the additional 15 percent revenue related to these services. Otherwise, the practice could face not only a claim of improper billing but also a potential False Claims Act (FCA) allegation and Civil Monetary Penalties (CMP) for overpayment.
Practices looking to maximize revenue in a decreasing reimbursement marketplace could avail themselves of incident-to billing as long as they comply with all of the requirements outlined in the CMS Medicare beneficiary policy manual and in each of the Medicare jurisdictions by the MACs. The regulations themselves evolve and present nuances, as in the case of split/shared incident-to billing. If there any questions regarding the ability of the practice to comply with the incident-to billing requirements, practices should simply consider billing for the APP services under the APP’s own NPI instead of risking potential FCA and CMP claims.