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Fighting Fraud

OIG to Focus on Billing for Incident-To Services

One of the new areas of focus from the 2012 OIG Work Plan is Incident To Services provided by Auxiliary and non-physician practitioner (NPP) personnel in a provider practice. To quote the work plan directly:

Physicians: Incident-To Services (New):
We will review physician billing for "incident-to" services to determine whether payment for such services had a higher error rate than that for non-incident-to services. We will also assess the Centers for Medicare and Medicaid Services' (CMS) ability to monitor services billed as "incident-to."

Dollars and Sense:
A study published in 2009 based on services provided Incident To a Physicians in 2007 showed that when CMS permitted physicians more than 24 hours of services in a day, 50 percent of the services provided were found to have not been personally performed by a physician. Non-physicians performed these services, and these services may have been billed as "incident to" services.

CMS determined that it allowed payment of $105 million on approximately 934,000 services that physicians personally performed and another $85 million was paid for approximately 990,000 services that non-physicians personally performed during this 3-month period. Additionally, the study showed that non-physicians performed almost two-thirds of the invasive services that Medicare allowed the physicians.

Of that $85 million for non-physicians, CMS also determined that $12.6 million went to approximately 210,000 services that were performed by unqualified non-physicians. Unqualified non-physicians performed 21 percent of the services that physicians did not perform personally. Non-physicians with inappropriate qualifications performed 7 percent of the invasive services that physicians did not perform.

The study showed that some of the services provided by unqualified non-physicians involved the following types of services:

  • complex skin surgeries such as micrographic surgical removal of tumors
  • eye exams
  • diagnostic imaging,
  • eye photography
  • ophthalmoscopy

Quantifying Who Qualifies:
The OIG is taking a closer look at the qualifications of clinicians and the delivery of services billed incident-to supervising physicians under CMS's Incident- To billing rules. They want to determine how many office visits, consultations, eye exams, skin grafts and other services are being performed by unqualified non-physicians and if there is a higher error rate than on regular claims. Additionally, they are assessing CMS' ability to properly monitor Incident- To services that are not clearly identifiable on submitted claims, as currently the only way to determine the validity of the service is by reviewing the actual medical record.

Medicare's Definition of Incident-To:
"Incident to a physician's professional services means that the services or supplies are furnished as an integral, although incidental, part of the physician's personal professional services in the course of diagnosis or treatment of an injury or illness." (Medicare IOM Publication 100-02, Chapter 15, Section 60.1).

CMS defines incident-to services as those that are "furnished incident to physician professional services in the physician's office (whether located within a different office suite or within an organization) or in the patient's home.

CMS states there are two ways in which a provider /practice can bill for services rendered by an NPP, they are as follows:

  • Under the NPP's identification number
  • "Incident-to" the physicians care and billed under the physician's provider number

What Criteria must be met for Incident-To Billing?

If a practice chooses the second method of billing services, hence, Incident-To a physician's service, the following criteria must be met to stay compliant with CMS guidelines:

  • A physician must initially see the patient and establish a plan of care.
  • The services rendered by your NPP are typically offered in the office and are part of a documented treatment plan.
  • The physician is on-site, contiguous - not necessarily in the same room, but in the same office
  • When the mid-level sees the patient so that the physician is readily available to provide assistance if necessary
  • The physician must continue to be actively involved in the patient's plan of care.

Defining Who Can Provide Services:

Auxiliary Personnel:

Auxiliary personnel, such as medical assistants, must be an employee of the physician, or a leased employee of the physician. Personnel may work part-time or full-time. Personnel must work under the direct supervision of a physician.

  • Can only bill lowest level of E/M service, code 99211
  • Do not have individual provider numbers and can't bill separately for their services like an NPP
  • Medicare will pay the claim at 100 percent of the physician fee schedule

CPT® Definition of 99211:

"Office or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services." (CPT® 2010)

Criteria for billing 99211 Incident-to:

  • Must be an established patient
  • There must be an established plan of care
  • There must be an E/M service provided by an employee of the physician
  • Must be provided in the office
  • There must be direct physician supervision

Code 99211 should not be used if the sole purpose is:

  • Giving the patient an injection
  • Drawing blood, venipuncture (*INR/Coumadin clinic*)
  • Writing a prescription renewal
  • Making telephone calls

Unlike auxiliary personnel, an NPP is a licensed provider and can bill for services without a physician present, by using their own CMS or Medicaid provider number. Services are generally reimbursed at 85 percent of the CMS or Medicaid fee schedule.  If the NPP chooses to bill Incident-To a physician, those services are then reimbursed at 100 percent of the CMS or Medicaid physician fee schedule when these services are properly provided and documented.
An NPP can bill E/M levels 99211-99215

  • An NPP can bill under their own CMS or Medicaid Provider number
  • Medicare will pay the claim at 100% of the physician fee schedule

What types of personnel are considered Non-Physician Personnel (NPPs):

  • Nurse Practitioner
  • Nurse Midwife
  • Clinical Nurse Specialist
  • Physician Assistant
  • Clinical Psychologist
  • Clinical Social Worker
  • Physical/Occupational Therapists

So what do we know?

  • We know that the OIG is clearly on a direct path to rectifying the alarming issue of unqualified personnel providing services to CMS/Medicaid members and reducing the number of errors they feel are associated with these services.
  • We know the OIG is putting CMS through its paces by having CMS scrutinize Incident-To claims and will be reviewing encounter data moving forward to ensure that services were not only billed correctly, but were provided by the appropriate personnel.
  • Rest assured, at the end of the day, the OIG is looking to recover overpayments and if you have been billing Incident-To services incorrectly, be prepared to answer and refund monies when they come knocking at your door.

For more information, please click on the following links:

Happy Holidays and Happy Reading! See you in 2012!

Holly J. Cassano has been certified for more than 4 years and has been involved in practice management, coding, auditing, teaching and consulting for multiple specialties for the past 15 years. She served two terms as an AAPC local chapter officer and has written several articles for The AAPC, and is an Authoring Partner for Codingwebu. She currently works for Preferred Care Partners as a CDI specialist, based out of The Villages, FL. You can reach her at

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