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Another expensive incident-to incident

You know that Medicare pays practices 85% of the Medicare physician fee schedule for services performed by a non-physician practitioner (NPP), and that it bumps reimbursement to 100% when the NPP’s services are performed incident-to. But through the years we’ve spoken with compliance experts who think the extra 15% is more trouble than it’s worth, and a recent False Claims Act settlement by several providers based in Memphis, Tenn. supports this belief.

Two doctors and three family medicine practices will pay $341,690 to resolve allegations that they reported nurse practitioners’ services as though they had been performed incident-to, when the physicians were frequently out of the office, out of the state – and sometimes out of the county – at the time the services were performed, the Department of Justice announced Oct. 30.

The case was part of a larger qui tam claim brought by Michael Grace that included Tenet HealthCare and Desert Regional Medical Center. Grace will receive $58,087 for this portion of the settlement.
It is likely that it would have been cheaper in the long run for the practice to take the 15% cut on reimbursement than to go through the hassle and expense of an investigation followed by a hefty settlement. Remember that the direct supervision requirement for incident-to services is inflexible: A physician must be in the office suite and immediately available. Even if the NPP has decades of experience, a physician must provide direct supervision for services billed incident-to.
Unfortunately, ensuring adequate supervision can be a struggle for practices. For example, the doctor who is scheduled to provide supervision is called out of the office by an emergency, but the biller assumes she was in the office and bills the NPPs’ services incident-to. The practice would need to repay the additional 15% for each claim.
Reporting initial encounters incident-to is another common error according to Medicare Administrative Contractor (MAC) Novitas.The MAC reported that its medical review team "observed a continued trend of the utilization of non-physician practitioners to perform initial office visits as 'incident to' services." That doesn't make the grade either, Novitas says.
An initial history and physical performed by a non-physician practitioner, although the physician is documented as being present or in the office suite and immediately available, is not covered under the "incident to" guidelines. As outlined below, the physician must perform the initial service. This includes the history and physical, examination portion of the service and the treatment plan. It is expected that the physician will perform the initial visit on each new patient to establish the physician-patient relationship.
Incident-to isn’t going away, but compliance officers should use this case and a 2019 settlement for more than $100,000 to start a conversation about the importance of following the rules for incident-to to the letter. And if that's a problem for the practice, start a conversation about getting rid of incident-to billing.
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