NAMAS Webinar Q&A: Incident-to and Split Shared Services

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Below are the questions received during our recent webinar, Incident-to and Split Shared Services, originally presented on November 5, 2020. These questions have been answered by the webinar presenter, David M Glaser, Attorney, Fredrikson & Byron, P.A.

Question 1:
1. I thought a treatment plan needed to be set at prior visit by the other ( attending ) …
Answer 1:
The physician must initiate the course of treatment. That can happen either at an earlier visit, or at the current visit. There is nothing that explicitly says that if a non-physician professional starts the visit and the physician completes it, the work done by the non-physician can be incident to, but logically that seems totally acceptable and I am not aware of that being challenged.

Question 2:
A Pharmacist in the office setting, could they do incident to as a non physician healthcare provider? or would be considered as ancillary? (Clarification:) A question that I have is how is a Pharmacist considered who is working in the office setting with the provider - are they considered the same as the ancillary staff or as a non-physician health care provider?
Answer 2:
Pharmacists can definitely be incident to. It is not clear to me whether they could be an E&M services other than a 99211.

Question 3:
Can you comment on how split/shared visits work with the new regulations related to review and verify (Final Rule 200) rather than redocumenting what is already documented?
Answer 3:
The new regulations added in last year’s fee schedule depressed me because I would assert that that they were totally unnecessary and they arguably are more restrictive than the state of the law before the rules were issued. These rules, found at 42 CFR § 410.20, make it clear that physicians do not have to redocument work done by others. With limit exceptions, I don’t think there was a requirement that physicians personally document. Those exceptions were anesthesia services and teaching physician services. The bottom line is that the the non-physician professional can document the physician’s involvement.

Question 4:
Can you give us an update on Split/Shared for 2021? It looks as though it mentions time being a factor but nothing about not using time and just using MDM.
Answer 4:
I know of nothing on the Medicare front that changes split/shared for 2021. If there has been any change to Medicare policy, I have missed it.

Question 5:
Does the supervising provider have to "accept the care of the patient" or just be the incident to billing provider?
Answer 5:
As I understand it, the supervising provider needn’t know that the patient exists. They just need to be in the office and available. A bit wacky, but true.

Question 6:
How does the employee paid by the physician work in a health system for incident to? as long as the ancillary staff is being paid by the same overseeing system as the provider?
Answer 6:
Ideally, I would have them in the same entity. See the next question.

Question 7:
For split/shared services in the hospital, if the NP is employed by the main entity employer (hospital employed) and shares a visit with a physician employed by an affiliated medical group (NP is not directly employed by medical group) can the service be billed under the physician if shared and properly documented?
Answer 7:
While one could argue that this is ok, it is far safer to get them in the same entity. Just have the physician entity lease the NP from the hospital. Is that a distinction without a difference? Probably, and you could use that as a defense if necessary. But why risk it?

Question 8:
How will the 2021 EM changes work with a Split Shared visit - both when billing on time or MDM?
Answer 8:
Good question. I don’t believe that CMS has changed its policy yet. I think that likely means you have to use MDM because Chapter 12 - Physicians/Nonphysician Practitioners 30.6.1.C says “d. Face-to-face time refers to the time with the physician only. Counseling by other staff is not considered to be part of the face-to-face physician/patient encounter time. Therefore, the time spent by the other staff is not considered in selecting the appropriate level of service. The code used depends upon the physician service provided.” With that language present I wouldn’t advocate combining time of the physician and the physician extender. One can say “they manuals aren’t binding” but that argument is harder to make with split/shared because that concept only exists in the Manuals.

Question 9:
With the 2021 E/M changes, we are no longer using history or exam to score the level of service, so how do you think the documentation would look like for the MDM in a split/shared setting with the APN and physician?
Answer 9:
Someone would need to record the physician’s thoughts about the course of treatment. I would add that even though history and exam don’t determine the level of service, I think that document that the physician did either would be enough to support the idea of a split shared visit. Until Medicare changes the Manual, any portion of the face to face encounter allows a split shared bill.

Question 10:
So, let's say the provider is unable to call in to speak with inpatient patient and only reviews the chart for MDM, it cannot bill?
In either inpatient or settings, without a face to face encounter, (possibly via telemedince during the PHE) Medicare policy would not permit a bill.

Question 11:
If a treatment plan was established during the patient's inpatient admission, can the NPP see the patient for follow up in the office and bill incident to?
Answer 11:
Nothing suggests that the “course of treatment” has to start in the clinic, so this should be fine!

Question 12:
Is there any time when an incident-to service (e.g. a blood draw performed by an MA) would be allowed in a PBB setting? This would be on a separate DOS than an E&M by an MD or APP.
Answer 12:
The hospital would bill for this service, not the professional. This is an example of the hospital oriented “incident to.’ But this is a hospital, not a professional, service, if that makes sense.

Question 13:
PA see the patient with the established conditions that has been establish by the physician and also have new problem that the PA treated? Is this still incident too?
Answer 13:
As long as the other conditions are met. The physician needs to stay involved, but it is possible to diagnose and treat and still be incident to.

Question 14:
Per AMA guidelines a shared visit, the total time is summed up (only distinct time should be counted) in order to select the level of the visit based on time
Answer 14:
This is a good question. I would be very hesitant to do this for a Medicare patient. See question 8 above.

Question 15:
We have an Infusion clinic and Physician A is present at this clinic every Mon, Wed and Friday only. While Physician B is at the clinic every Tues and Thurs. Both are from the same group practice. The infusion services are performed by a Registered Nurse and services are billed under Physician A.
Question: All the patients seen at the Infusion clinic are the patients of Physician A. But some patients can only come on Tues or Thurs. Can we still bill the Tues and Thurs’ services under Physician A? Or should it be billed under whoever is the supervising physician on that day, in this case, Physician B?
Answer 15:
The bill should be under the supervising physician, that is, Physician B. The good news is that if you have done this improperly in the past I don’t believe a refund is required, but going forward you want to bill under the supervising physician.

Question 16:
Regarding 'new problem' - is it appropriate for MACs to insert their own interpretation of the regulation and/or manual guidance? I think this is where we run into issues with the 'new problem' issue and 'incident to' billing.
Answer 16:
MACs must follow Federal Regulations, and the manuals. They don’t have the authority to just make up their own rules. They frequently do it, but no, it is not appropriate for them to do so.

Question 17:
Since we cannot bill Incident-to in PBB clinics, can an RN ever bill a 99211, since nurse visits follow incident-to guidelines?
Answer 17:
I am not sure I totally understand the question, but it is possible to have a 99211 in the hospital. It just isn’t “incident to” a physician.

Question 18:
Physician and NPP sees patient on same day - you would want to bill the Physician, however, sometimes the physician doesn't document and therefore, this would be under NPP only - just thoughts on that scenario.
Answer 18:
While it is clearly a best practice to have the physician document that is not a requirement. If the physician saw the patient, you can bill under the physician. It would definitely be preferable if someone documents the physician’s involvement. I highly, highly recommend that. But it is not overtly required.

Question 19:
What about a teaching facility where resident doctors are rounding and the staff physician is signing off. Isn't that considered incident-to and would that be acceptable?
Answer 19:
The teaching physician rules are different from “incident to.” Medicare’s position is that the “incident to” benefit is not applicable in the hospital. But the teaching physician rules are in 42 CFR 415.172, not the incident to rule, 42 CFR 410.26.
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