Documentation and Billing of Mental Health Services: Incident – to Billing

BY CARENODES ACADEMY

Lines of Business: Medicare, (some private payers)

Certain services provided by your employee (or a fellow employee) may also be eligible for Medicare payment, but check your state law for exceptions and requirements.

Medicare allows for the billing of “incident to” services performed by ancillary personnel under the supervision of a qualified Medicare provider. Services furnished “incident to” a psychologist’s services are covered by Medicare if they meet specified requirements outlined in the Medicare Carriers Manual. These requirements state that the services must be: 

• Mental health services that are commonly furnished in a psychologist’s office.
• An integral, although incidental, part of the professional services performed by the psychologist.
• Performed under the direct personal supervision of the psychologist.
• Either furnished without charge or included in the psychologist’s bill.  

Psychologists should closely review their MAC’s local coverage determinations (LCDs) for any limitations or restrictions on “incident to” services. You can view the LCDs online.

The concept of “incident to” billing, used under Medicare Part B and sometimes adopted by private commercial third-party payers, is complicated to understand and challenging to implement for behavioral health organizations given the diversity of practitioners rendering services.

For behavioral health providers, “incident to” is an attractive option because it increases patient access to services since practitioners without a Medicare billing number, or who are not recognized by Medicare, but also not excluded, can provide care and bill under the supervising physician. The organization is then reimbursed at 100% of the physician fee schedule, as long as the guidelines are followed. 

Having auxiliary staff render services and the ability to bill them as if they were rendered by the physician is a privilege granted by Medicare that requires a thorough understanding of the “incident to” rules. 

This “incident to” fact sheet seeks to clarify the scope and limitations of “incident to” under Medicare as it pertains to mental health services. The intent is to assist providers and organizations avoid compliance pitfalls in the execution of “incident to” billing.

DEFINITION OF “INCIDENT TO” 

“Incident to” means services or supplies are furnished as an integral, although incidental, part of the physician’s personal professional services.

The Centers for Medicare and Medicaid Services (CMS) does not provide an explicit definition of “integral, although incidental,” in its extensive description of “incident to” rules. In brief, services that would normally be part of the treatment of a patient by a physician are rendered by an auxiliary person, functioning under the direct on-premise supervision of a physician. These services are integral to implementing the physician’s established plan of treatment of an injury or illness.

WHO MAY RENDER SERVICES “INCIDENT TO” A PHYSICIAN 

Mental health services rendered “incident to” a physician’s professional services are performed by auxiliary personnel such as nurses (RN or LPN) and professional clinicians not recognized by Medicare such as licensed professional counselors (LPCs) and marriage and family therapists (MFTs). Certain non-physician practitioners (NPP) also provide services under “incident to” such as a physician assistant (PA), nurse practitioner (NP), clinical nurse specialist (CNS), certified nurse-midwife (CNM), licensed clinical psychologist (CP) and licensed clinical social worker (LCSW).

A word of caution; there is Medicare language that appears to support that certain NPPs such as NPs, PAs and CPs can also initiate care and have services rendered and billed under their supervision. Per a Medicare Med Learn Matters Article:

“Incident to” services are also relevant to services supervised by certain nonphysician practitioners such as physician assistants, nurse practitioners, clinical nurse specialists, nurse midwives or clinical psychologists. These services are subject to the same requirements as physician-supervised services. Remember that ‘incident services’ supervised by non-physician practitioners are reimbursed at 85% of the physician fee schedule. For clarity’s sake, this article will refer to ‘physician’ services as inclusive of non-physician practitioners

Be aware that NPPs may be prohibited from delegating performance of their services to auxiliary personnel under their respective state licensure laws. The Social Security Act (SSA) also requires that auxiliary personnel providing services “incident to,” must meet “any applicable requirements to provide ‘incident to’ services, including licensure, imposed by the state in which the services are being furnished

KEY COMPONENTS – OUTPATIENT OFFICE/NON-INSTITUTIONAL SETTING

To appropriately bill and receive 100% of the physician payment under the Medicare Physician Fee Schedule (MPFS) in the outpatient office/non-hospital-based setting for mental health services, the following must occur:

1. The physician, (typically a psychiatrist), must initiate the course of treatment (direct, personal, professional service).5
   • Physicians must see all new patients, whether self-referred or sent for consultation. This allows them to establish a plan of care or treatment for each problem identified. 
   • The initial visit by the physician may be done via telemedicine, assuming applicable Medicare rules are followed in the delivery of telemedicine. Documentation must reflect that it was a telemedicine visit and involved face-to-face contact with the patient.

2. Because “incident to” is “problem-centric,” if an established patient presents a new problem that results in a change in the plan of treatment, the physician must be involved to initiate the change in care. 
   • EXAMPLE: The supervising physician on-site must be contacted by the NPP or must see the patient to approve the change(s) for the new problem; this contact is documented by the NPP and/or physician. 
     • Because billing “incident to” requires direct, on-site supervision, contact with the physician in this scenario cannot be done via telemedicine or phone consultation. 

3. Medicare is not prescriptive regarding what a “change” in a plan of treatment entails, so it will be important for organizations to establish the type of changes requiring physician involvement; e.g., a NP wants to prescribe a different medication for a patient or a LCSW decides their patient would benefit from eye movement desensitization and reprocessing (EMDR) to help treat a history of trauma.

3. There must be subsequent services by the physician of a frequency that reflects the physician’s continuing active participation in and management of the course of treatment.
   • Examples to support physician active participation could include:
     • Documentation of face-to-face visits (can include telemedicine) with the physician as needed, notation made by a non-physician clinician that the case was discussed with the physician, and physician review and signature on the individualized plan of care.
4. In the office setting, qualifying “incident to” services must be provided by personnel whom you directly supervise, and who represents a direct financial expense to you (such as a “W-2” or leased employee, or an independent contractor).
5. Direct physician supervision of the NPP or auxiliary personnel is required. 
   • Physician must be present in the office suite (not necessarily in same room).
   • Physician must be immediately available. Per the Centers for Medicare & Medicaid Services (CMS):

Immediate availability requires the immediate physical presence of the supervisory physician. CMS has not specifically defined the word ‘immediate’ in terms of time or distance; however, an example of a lack of immediate availability would be situations where the supervisory physician is performing another procedure or service that he or she could not interrupt. 

Documentation practices that will support the appropriate rendering of “incident to” services are as follows: 

• Evidence of required direct supervision of the services rendered, e.g., statement by therapist on a progress note such as “Therapy rendered today under the supervision of Dr. ______, who was on-site.” 
• Individualized treatment plans that are reviewed per state requirements, signed and dated by a physician. 
• Physician order or physician intent documented for nurse visits and patient injections. 
• When a patient is seen by an NPP or auxiliary personnel and the patient presents with a new problem, the documentation supports that the physician was contacted regarding the new problem and determines the new course of treatment or the patient is seen by the physician prior to initiating a new course of treatment for that problem

APPLICATION & CASES

SCENARIO 1: The psychiatrist performs the initial psychiatric evaluation of the patient and develops a plan of care that includes medication management and psychotherapy. Patient is diagnosed with depression and anxiety and prescribed Zoloft 50 mg. daily. The patient is then seen monthly by a NP who makes no adjustments in the medication. A supervising psychiatrist is on-site during each appointment. 

Assuming all criteria under “incident to” are met, these visits by the NP can be billed under the name/NPI of the supervising physician.

SCENARIO 2: The psychiatrist performs the initial psychiatric evaluation of the patient and develops a plan of care that includes medication management and psychotherapy. Patient is diagnosed with depression and anxiety and prescribed Zoloft 50 mg. daily. The patient is then seen monthly by a NP. At the third visit, based on the NP’s assessment of worsening symptoms, the NP decides a change to Lexapro should be considered. The NP has a hallway discussion with the supervising psychiatrist who is on-site. The physician makes the decision to change to Lexapro. The NP documents the revised order by the physician. 

In this scenario, the NP determines that a change in the initial plan of care is potentially appropriate regarding the medication change. Because the physician made the ultimate decision, this visit and future visits can be billed under the name/NPI of the supervising physician since the plan of care remained the product of the physician’s decision-making

SCENARIO 3: Patient is seen weekly for psychotherapy by an LCSW. The patient calls requesting an additional appointment which the LCSW can accommodate. When the patient comes for this appointment, there is no supervising psychiatrist on-site. 

The visit must be billed under the name/NPI of the LCSW and will be reimbursed at 85% of the physician fee schedule.

SCENARIO 4: Patient is seen for an initial psychiatric evaluation by the psychiatrist. The patient is diagnosed with depression and post-traumatic stress disorder. The initial plan of care includes medication management and psychotherapy. 

The patient is seen for weekly psychotherapy by an LPC. 

During one session, there is no supervising psychiatrist on-site. This visit is not billable as the LPC is not recognized by Medicare and does not have an NPI.  

COMPLIANCE TIPS 

Although “incident to” is a Medicare concept, non-Medicare payers may or may not follow Medicare’s rules for “incident to.” Be sure to contact your Medicaid and third-party payers regarding their rules for billing incident-to services and have their position in writing.

• Some confusion arises in that many people use the phrase “incident to” to describe billing NPPs or other people qualifying as “auxiliary personnel” under the physician’s billing number for private insurers. Since some private insurers do not give NPPs billing numbers, they instruct the practices/clinics to bill for the NPP services under the physician’s number

MEDICARE RESOURCES

1. Medicare Benefit Policy Manual. Chapter 15, §60 – 60.4. This describes Medicare rules for the provision of services rendered “incident to” in office, clinic and hospital-based settings.
2. Medicare Benefit Policy Manual. Chapter 6, §20.5.2. This comprehensively describes coverage of outpatient, hospital based therapeutic services when rendered “incident to” a physician’s service.
3. Medicare Benefit Policy Manual. Chapter 6, §70 -70.3. This section describes coverage, supervision and documentation requirements for hospital based, outpatient psychiatric services.
4. Med Learn Matters. Article Number SE0441. Effective August 23, 2016. This article details rules for “incident to” with additional clarifications.
5. Med Learn Matters. Article Number SE0816. Revised May 22, 2018. This article provides an excellent summary explaining Medicare guidelines for payment of Part B mental health services.
6. Medicare Learning Network; MLN Booklet. Telehealth Services. January 2019. This publication addresses the core Medicare requirements in the delivery of telehealth services.
7. Code of Federal Regulations. 42 CFR 410.26. This section of the Federal Code describes the rules of “incident to” and provides definitions of key terms such as auxiliary personnel, direct and general supervision, practitioner and services and supplies.
8. Code of Federal Regulations. 42 CFR 410.71; 410.73-410.76. These portions of the Federal Code describe Medicare coverage of services to include qualifications rendered by clinical psychologists, clinical social
   workers, physician assistants, nurse practitioners and clinical nurse specialists. The rendering of services “incident to” a physician is also addressed under each section of the respective practitioner.
9. CMS. CY 2020 Medicare Hospital Outpatient Prospective Payment System and Ambulatory Surgical Center Payment System Final Rule (CMS-1717-FC), November 1, 2019. This link will go directly to the 2020 final
   rule. Of interest is Section X. (A) – Proposed Changes in the Level of Supervision of Outpatient Therapeutic Services in Hospitals and Critical Access Hospitals where the change is noted to general supervision for
   most hospital-based outpatient services. https://www.federalregister.gov/d/2019-24138/p-97