An August 2009 report by the Office of Inspector General (the “OIG”) revealed the results of a study aimed at identifying the prevalence and qualifications of non-physicians who provide “incident to” services. Physicians bill “incident to” services to Medicare Part B, although such services are provided by non-physicians (e.g. a nurse). Such services are payable by Medicare, provided certain conditions are met (e.g. direct physician supervision). The OIG, which focused on days for which Medicare allowed physicians more than 24 hours of service, found that:
- Non-physicians performed about half of non-invasive services and two-thirds of invasive procedures allowed for physicians on such days (physicians performed the rest);
- Unqualified non-physicians (e.g. lack of requisite licensure or training) performed 21% of the services provided by non-physicians, but allowed by Medicare for physicians, on such days.
Based on its findings, the OIG set forth the following three recommendations in its report:
- Revise the “incident to” rules to require physicians who bill for services they did not perform to ensure that only licensed physicians or qualified non-physicians (e.g. proper training, certification and licensure) personally perform the services;
- Require physicians to use a code modifier when billing for services they did not personally perform to enable CMS to monitor the appropriateness of any non-physicians’ qualifications;
- Take appropriate action to address claims that (i) were billed as “incident to” services but which did not meet the definition for “incident to” services; and (ii) were rehabilitation therapy services performed by non-physicians who lacked the requisite therapist training.
In a letter included with the OIG’s report, CMS agreed with the OIG’s first and third recommendations. CMS noted that it will provide guidance in its manuals for documenting the qualifications of non-physicians who perform “incident to” services. CMS will also instruct Medicare Administrative Contractors to consider the OIG’s report when they prioritize medical review strategies. CMS did not concur with the OIG’s second recommendation, citing operational difficulties for developing a definition for services that are not “personally performed” by a physician. CMS, however, stated that it would consider adding code modifiers for services provided exclusively by staff other than the physician identified as the rendering provider.
The OIG’s study was based on data from 2007 and the report may be accessed here.