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July 28, 2021

Incident-To Billing Requirements for Split/Shared Evaluation and Management Claims: Capturing the 100 Percent

By Conrad Meyer

Introduction

To understand the complexities of the incident-to rules, one must look at the changes of medicine over the years in terms of healthcare delivery, specifically on family practice and the types of non-physician providers that have worked with physicians over the years. For example, in the 1960s-70s, a family physician was usually in a solo practice with maybe one or two fellow physicians. Supporting that family physician practice were either nurses, aides, lab technicians, or even a spouse who might help with obtaining lab work, EKGs, blood draws, and other services. Now we have mid-level providers including advanced practice registered nurses (APRNs), physician assistants (PAs), clinical nurse specialists (CNSs), respiratory therapists (RTs), speech therapists (STs), occupational therapists (OTs), and licensed clinical social workers (LCSW).  Today, mid-level providers, often referred to as advanced practice providers (APPs) or nonphysician practitioners (NPPs), are continuing to increase in number, expand the scope of their respective practice, and make up the backbone of the multidisciplinary practice in the healthcare delivery system.

Incident-to was born out of insurance companies through capitation.  Capitation involved lump-sum payments to physician practices to manage members’ health. At the time, insurance companies utilized capitation, which shifted from a fee-for-service model (charging a fee for each item of service) to a lump-sum payment to incentivize physicians to become more cost-effective, utilizing the least expensive labor costs while saving the physician time to apply his or her best use for that patient.  Essentially, capitation shifted risk from the payor to the provider.

When Medicare was enacted, Congress provided for payment to the physician who directly interacted with the patient but also noted all of the assistance that physicians received in their offices from APPs.  Recognizing these integral services, CMS established the incident-to rules to cover these services intertwined with the physician’s practice while also providing incidental services to patients. Since the services provided by the physician support staff, including APPs, are so intertwined with the patient, a claim that would be submitted “incident-to” the physician service would be submitted as if the physician performs the services him or herself.1  The thought behind this methodology acknowledged that the government realized physicians could not perform the services they do without the support of the ancillary staff in their offices.  Even though these non-physician providers are not listed on the claim form, the claim is paid at 100 percent of the physician fee schedule as if the physician performed the services directly. 

Failure to comply with the incident-to billing regulations or not meeting their requirements could expose the practice to potential liability for overpayment should the practice submit a claim for services to Medicare as “incident-to.”  If there is any question regarding the practice’s ability to comply with the regulations, it is highly recommended that the practice bill for the non-physician providers under each of their respective national provider identifiers (NPIs) and have the practice reimbursed at 85 percent of the physician fee schedule for that service instead of the 100 percent. Of course, a practice would benefit from an extra 15 percent reimbursement related to the services provided by these NPPs by simply following the incident-to regulations to bill under the physician’s NPI number at 100 percent of reimbursement instead of the 85 percent reimbursement. However, following these rules and regulations is no small task.

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. 

Conclusion

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.

Footnotes

  1. See Medicare Beneficiary Policy Manual Ch 15 Sec 60.1(B).
  2.  See CMS 2016 Physician Fee Schedule – Final Rule.
  3.  See Medicare Beneficiary Policy Manual Ch 15 Sec 60.1(B)
  4.  Id.
  5.  See Medicare Beneficiary Policy Manual Ch 15 Sec 60.1(B)
  6.  Id.
  7.  Id.
  8.  See Novitas LCD.
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By Conrad Meyer

JD, MHA, FACHE, Chehardy Sherman Williams, Metairie, LA

Conrad Meyer is a partner in the healthcare practice group at the Law Firm of CSW in Metairie, Louisiana as well as an adjunct professor of Health Law at Loyola School of Law in New Orleans.  He is an AV – Pre-eminent rated attorney, a lifelong resident of New Orleans and involved in the practice of healthcare law for over 20 years.  He focuses his practice on advising healthcare providers on healthcare regulatory, compliance, transactional matters, medical staff issues and serving as hearing officer for peer review hearings, as well as medical malpractice defense. 

 

Mr. Meyer has also been a regular contributor of healthcare law issues to the ABA Health e-Source, Healthcare Journal of New Orleans, the Louisiana Medical News, and the New Orleans Bar Association’s publication of Briefly Speaking. 

 

Outside of the office, he is a significant participant in his community.  He has worked as a member of the Allstate Sugar Bowl Committee for the past 15 years, chairing many committees and helped the Bowl in its mission to develop tourism in Louisiana and New Orleans.  He may be reached at [email protected].