Become Fluent in the Federal Rules
An article by Richard R. Wier, Jr. Esq. taken from the May/June issue of HBMA Billing (hbma.org)
The Centers for Medicare and Medicaid Services (CMS) and federal law enforcement agencies have increased efforts to combat healthcare fraud. In order to help fund these efforts, the Patient Protection and Affordable Care Act (PPACA) has increased the Health Care Fraud and Abuse Control Program's funding by $350 million from fiscal year 2011 to fiscal year 2020. As a result of these increased efforts and funding, in October 2012, the Medicare Fraud Strike Force charged 91 individuals, including doctors, nurses, and other licensed medical professionals, for their participation in falsely billing the Medicare program, resulting in approximately $429.2 million in penalties.
According to the False Claims Act, fraudulent billing under Medicare includes, but is not limited to, billing for tests not performed, performing inappropriate or unnecessary procedures, upcoding by using more expensive billing codes when lower priced procedures were performed, and various other billing inflation practices. When billing, health care providers must remain vigilant of the ever-changing billing and coding laws and pertinent state regulations to ensure that they are not improperly submitting Medicare claims.
One billing issue that may arise is the improper billing of Non-Physician Providers (NPPs), such as physician's assistants, nurse practitioners, and clinical nurse specialists. NPPs are able to enroll and bill Medicare for services that they are licensed or certified to perform within the state. When NPPs work independently, they are recognized under Medicare for professional billing and are able to bill Medicare under their own Medicare provider numbers; however, the reimbursement by Medicare is only 85% of the Medicare Physician Fee Schedule (MPFS). The MPFS provides the billing codes and proper coding methods that are required when requesting reimbursement from Medicare for services provided. Conversely, NPPs who perform services that are incident to the physician's course of treatment, which are known as "incident-to services," can bill Medicare for the services provided by the NPP under the physician's Medicare provider number, and the health care provider would receive 100% reimbursement from Medicare under the MPFS. In order for NPPs to bill incident-to services, Medicare requires that the physician perform an initial visit with the patient in order to establish the physician-patient relationship. After the initial visit, the physician does not need to be involved in each patient visit, but must actively participate in the management of the course of treatment for the patient. Although not required by Medicare, some carriers require that the physician meet with the patient every third visit or when a new symptom or medical issue arises.
When determining whether to bill for services provided by the NPP independently or incident-to the physician's services, health care providers must verify the scope of practice for the NPP, the place of service, and physician supervision over the NPP. There are a variety of resources available for guidance, including Title 42 of the Code of Federal Regulations (CFR); coding and billing under the Medicare Physician Fee Schedules (MPFS), as previously mentioned; and state laws and regulations. The CFR is a federal law that
provides minimal standards necessary for billing under Medicare. Health care providers must keep in mind, however, that it is imperative to look at state law first because it may be more stringent than the federal law. State law will specify the scope of practice, certification and licensing, and level of supervision required for each type of NPP, and these factors determine whether the NPP can bill incident-to services under the physician's Medicare provider number, which will result in 100% reimbursement under the Medicare Physician Fee Schedule for services performed. Therefore, the health care provider who employs NPPs must fully review state laws in order to ensure that proper billing is submitted to Medicare for reimbursement.
The most important state law regulation to consider when billing incident-to services is the level of supervision required by a physician when an NPP treats a patient. Some state laws allow NPPs to bill under the physician's Medicare provider number when conducting incident-to services that relate to the physician's course of treatment without requiring the physician to be physically present during the meeting. The incident-to services must be part of the physician's course of diagnosis or treatment of an injury or illness, and the physician must supervise the services provided to the patient by the NPP. State law will define "supervision" as it is to be applied to Medicare billing. For instance, some states do not require the supervisory physician to be present in the room, nor does the physician have to provide any care during a patient visit. However, a physician in a supervisory role must still be "present on the premises" and immediately available to assist the NPP in providing services if necessary. State law can also define the specific meaning of "present on the premises." Similarly, the location where the services are provided will affect the way in which billing is submitted to Medicare, because incident-to services performed by an NPP in a hospital are directly paid to the hospital, and hospitals are reimbursed differently under Medicare. With these factors in mind, it is imperative for the health care providers who employ NPPs to verify state law for regulations regarding the location, scope of practice, and level of supervision required for an NPP when billing Medicare – especially since these laws are constantly changing.
Preparing your clients practices' for the government's increased scrutiny of fraudulent billing and overpayments are crucial. Therefore, it is important to meet with your legal counsel to identify risks and discuss preventive measures to ensure your doctors are in compliance with state and federal laws and regulations.
Richard R. Wier, Jr. is a former Delaware Attorney General. Mr. Wier brings to his clients over 35 years of counseling and litigation experience in the areas of labor and employment and health law in Delaware, Pennsylvania, and nationwide. He is admitted to practice before the United States Supreme Court and the supreme courts of Delaware and Pennsylvania.
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