Texas Board Position on “Incident To” Billing
First, let me explain how “incident to” billing arose and what it is. “Incident to” billing arose as a creature of Medicare – that is where it was born. This type of billing of services has now expanded through wide use to private insurance billing.
So what is “incident to” billing? “Incident to” billing occurs when one Provider provides a health care service and that Provider’s service(s) are billed under a different Provider’s name and PIN. The party’s tax ID number under which the services are billed has nothing to do with “incident to” billing – so forget about that..
Virtually ever chiropractor bills his/her services on an “incident to” basis – you do so every time your CA provides a service to a patient and you bill that service under your name.
However, a very significant problem will arise when a doctor of chiropractor provides a service that requires the doctor’s license and expertise to perform and the doctor’s service(s) are billed under another provider (most often a physician’s (MD or DO)) name and provider number. Why is this a problem you ask. We all know that physicians have what is described as a super license – that is, a medical license legally enables/entitles a physician to provide any type of health care service(s) (e.g. chiropractic, physical therapy, optometry, dental, etc.), so why can’t a physician bill for a chiropractor’s services?
The answer is that, in Texas, doctors of chiropractic are primary care providers (aka portal of entry providers). As such, services that require their license and expertise to provide must identify the specific provider that rendered the service (think HCFA Line 31!). In contract, in Texas physical therapists are not portal of entry providers. A PT cannot accept or treat a patient except upon referral of a POA provider (physician, chiropractor, nurse practitioner, etc.). Therefore, any service provided by a PT can be billed “incident to” another provider’s (often the referring provider) license. Since Texas doctors of chiropractic are portal of entry providers only those services that do not require the doctor’s special expertise and specialized license to perform can be billed under a different provider’s name through an “Incident to” billing practice. Thus, all Texas DCS must be aware of exactly what specific service(s) they provide can be billed under another provider’s license. Put another way, no service(s) that require a chiropractor’s expertise, training, education and specialized license to be performed (e.g. the patient examination, the patient’s diagnosis, the preparation of a patient treatment plan and a manipulation) can legally be billed under a different provider’s license as an “incident to” service.
This type of problem most commonly arises when doctors of chiropractic either (1) work for a physician owned practice), (2) re-organize their chiropractic practice as an MD-DC multidiscipline practice, or (3) where the doctor of chiropractic is personally credentialed as a preferred provider under a managed care program (Aetna, Blue Cross, United Healthcare, etc.) and other providers with whom they are associated are not similarly credentialed.
Under scenarios 1 and 2, many, if not most, doctors of chiropractic erroneously assume that if they are employed by a physician or medical group, including a “medical practice” through which they are practicing in the MD-DC multidiscipline model, that all of their services can be legally be billed under a physician’s names as “incident to” services. To the extent that the services provided did not require the doctor’s special expertise or license to be performed this is true. However, those services that did require the doctor’s own special expertise and license can only be provided by a licensed doctor of chiropractic and cannot be billed under any other provider’s name and PIN (in these situations the doctor performing the service must always be reflected and identified as the provider rendering the service).
Doctors must be aware that they cannot allow any professional service that requires their license, special expertise, education and training to be billed under any other provider’s name and provider number. To do otherwise would constitute fraud, as it would be deemed to be an effort to conceal the identify of the provider actually rendering the service(s) so as to increase the reimbursement rate paid for the services.
Another consideration to be taken into account would be the purpose of the “incident to” billing practice. Doctors cannot allow any of their services to be billed “incident to” if the sole intent is to simply increase the reimbursement value of the services provided. This is significant because some medical consulting businesses in Texas are now actively recruiting doctors of chiropractic to contract with a “physician-owned medical practice” that they “manage” for this sole purpose. In an enforcement case now pending before the Texas Board of Chiropractic Examiners a doctor of chiropractic who was recruited to contract with this “physician-owned medical practice” is now subject to very serious disciplinary action because the doctor “participated in a scheme to misrepresent the nature of services provided and thereby engaged in an act of fraud.” In this particular case the “physician-owned medical practice” and its “management company” mandated that all of the doctor of chiropractic’s specialized services – that required the chiropractor’s specialized license – be billed “incident to” a physician’s name and provider number. This “incident to” billing requirement included a requirement that all chiropractic manipulations – that are required to be billed using the appropriate chiropractic manipulation code (9920 . . .) under the rendering doctor’s name – be coded as a DO service and billed as a 97140 coded service. Such conduct clearly violates Texas law and would be presumed to be criminally fraudulent conduct.
Lastly, as reflected in scenario (3) above, often doctors secure credentialing status with private managed care carriers such as Aetna, BCBS, United, etc. for purposes of increasing their base patient flow. However, these same doctors often (1) employ associate doctors in their practice and allow these associates to treat their managed care patients, and (2) allow their chiropractic staff to provide services to these managed care patients – and bill both the associate doctor’s services and the chiropractic staff’s services to be billed under the credentialed doctor’s name, so as to qualify such services under the doctor’s managed care provider contract. Both of these scenarios may be deemed illegal and subject the doctor to monetary sanctions, reimbursement and expulsion from credentialed status. If the doctor’s “credentialed status” is as an individual provider and not as a “group practice” the doctor likely cannot permit any other employee of his/her practice to provide services to the managed care patient. In fact, some, if not all, managed care provider contracts have specific language that restrict access to the managed care carrier’s patients to only the individual contracted provider. That means that Texas Board Rule 80.1, allowing a doctor to delegate certain services to his trained staff, could not be invoked as a means of avoiding the limitations imposed under the doctor’s provider agreement with the carrier. Contract law, thus, trumps state regulatory law. In such cases, the economic effect can be draconian. Doctor can be required to reimburse the managed care carriers for all payments received through such “incident to” billing practices.
In summary, “incident to” billing is available under the right circumstances but doctors must proceed with caution anytime they undertake to bill their services under another provider’s name and PIN. Texas’s Board of Chiropractic Examiners will allow a doctor to bill certain services under another provider’s name as “incident to”, but will not permit a doctor of chiropractic to bill any service that requires that doctor’s special expertise, training, education and license under any other provider’s name.