Sara Jasper, JD
Staff Attorney
The Therapist
March/April 2012

Licensed Marriage and Family Therapists ("LMFTs") cannot currently be independently reimbursed through Medicare.¹ Non-physician practitioners can, however, often times be paid for "incident-to" services provided by a physician or be reimbursed through a second party payer. This article provides important information about "incident-to" and second party payer reimbursements.

Incident-To Physician Reimbursements
Medicare Part B pays for services provided by physicians and certain non-physician practitioners (i.e. psychologists, licensed clinical social workers, nurse practitioners with the equivalent of a master's degree in psychotherapy, and clinical psychiatric nurse specialists). LMFTs, License Professional Clinical Counselors ("LPCCs"), and pastoral counselors are categories of non-physician practitioners that are not currently recognized by Medicare and therefore cannot bill Medicare directly for their services. In some cases, however, Medicare will cover services by these non-physician providers if those services, although incidental, are considered an integral part of the services performed by physicians when treating their patients. In other words, because some services provided by non-physicians are essential and fundamentally related to those provided by the physician, claims for those services can be submitted by the physician to Medicare as if the services had been performed by the physicians themselves. While this does not mean non-physician providers are recognized or documented on the claim forms, it does mean that these types of claims are reimbursed at 100 percent of the physician fee schedule.²

Who Can Bill "Incident-To"?
Medicare does not have requirements regarding the qualifications of non-physician providers who may provide "incident to" services. Keep in mind, however, that some state laws require licensure or certification. Physicians are permitted to bill "incident-to" for services of employees and leased non-physician providers on the condition that physicians are able to terminate the involvement of those individuals and direct how and when they provide services which will ultimately be submitted to Medicare.

What Constitutes an Incidental Service?
To bill "incident-to," the non-physician providers' services must relate to a service performed by the physician during the normal course of diagnosis or treatment of an injury or illness.³ This means the physician must see new patients for an initial visit so that a physician-patient relationship can be established.⁴ Once the initial visit has taken place and the physician-patient relationship has begun, non-physician providers may bill for services they perform during and after the visit, as long as the physician performs ongoing services that are of a frequency that demonstrate the physician's active involvement in the patient's care.

The patient record should document the essential requirements for "incident-to" services. Those essential requirements include the following:

• The services are an integral part of the patient's treatment course;
• The services are included in the physician's bill;
• The services are of a type commonly furnished in the physician's office or clinic; and
• The services are at the expense of the physician (i.e. by a non-physician who represents a direct financial expense to the physician such as a W-2 or leased employee, or an independent contractor.)

Supervision Requirements
When a physician-patient relationship has been created, services considered "incident-to" can be performed without direct physician involvement (i.e. the physician is not required to be present in the treatment room while non-physician services are being performed). The supervising physician must, however, be on the premises and immediately available to assist the non-physician provider if necessary.⁵ Some carriers require that the supervising physician's number be listed on the claim form as opposed to the primary physician's number. Therefore, when submitting claims, the physician must submit their physician number as required by the carrier.

How to Document Incident-To Services
Medicare offers physicians coding and documentation guidance in the form of the "Documentation Guidelines for Evaluation and Management Services" manual and the "Carrier's Manual." The manuals can be found at www.cms.gov/MLNEdWebGuide/25_ EMDOC.asp.
"Incident-to" billing is the only means by which services of non-physician providers can be billed in a physician practice, hospital or clinic setting. "Incident-to" claims that do not comply with the rules outline above are considered to be potentially false claims. False claims are punishable by the Department of Justice and the Office of the Inspector General. Criminal punishment is also possible.

Second Party Payer Reimbursements
As discussed in the article "Medicare Reimbursement: How to Bill Second Party Payers" included in the November/December 2011 issue of The Therapist, another way to receive payment for providing services to Medicare patients is through second party payer reimbursement. In a situation where a patient has Medicare and private health care insurance, Medicare is considered the primary payer and the health care insurance plan is considered the second party payer. Because the Social Security Act currently excludes LMFTs from being Medicare providers, LMFTS who treat Medicare eligible patients must seek reimbursement for their services from second party payers.
In the past, health care plans required providers to submit denial letters from Medicare prior to paying out as a second party payer. As the result of a policy change, Medicare no longer sends denial letters for services to Medicare patients. This has left many LMFTs providers wondering how to bill second party payers for reimbursement. Accordingly, CAMFT has put together a list of procedures used by the health care plans to expedite the processing and payment of claims. This list can be found in the article mentioned above, "Medicare Reimbursement: How to Bill Second Party Payers."

Status of LMFTs within Medicare
The above mentioned pathways are viable options for payment until LMFTs are included within Medicare as reimbursable providers. CAMFT continues to fiercely advocate on this issue in Washington D.C. and we encourage you to follow this issue in our legislative updates.

Sara Jasper, JD, is a staff attorney for CAMFT. Sara is available to answer member calls regarding business, legal, and ethical issues.

Footnotes

¹ Section 1861(s)(2) of the Social Security Act
² The "incident-to" rules described in this article pertain only to Medicare reimbursements.
³ Section 2050 of the Medicare "Carrier's Manual" which can be accessed online by going to www.hcfa.gov/pubforms/14_ car/b00.htm.
⁴ Some local carriers require physicians to see patient every time they want to be seen for a new symptom but this is not a requirement of Medicare.
⁵ There is no requirement that the supervising physician has to be the physician who performed the initial visit with a new patient. Any physician who sees other patients in the clinic or office setting qualifies to provide supervision regardless of whether he or she is the patient's primary physician or a physician who practices a different specialty than the primary physician. Physicians who are independent contractors may provide supervision as on-premise supervisors as long as those physicians have reassigned their rights to payment to the group practice. Physicians who provide supervision must also treat patients. They cannot be hired for the sole purpose of providing supervision.