Blog, Chirosecure Live Event October 16, 2023

Mitigating Post Payment Risk Regarding Delegated Services

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Hello everyone. This is Michael Miscoe with Miscoe Health Law. With this week’s installment of ChiroSecure’s growth Without Risk Program. This week we’re gonna talk about mitigating post-payment risk relative to delegated services. And this is an issue that comes up both on the chiropractic side of the fence as well as the medical side of the fence especially if you’re medically integrated.

And it creates a number of problems. And it’s one of those issues that has been. Particularly in focus for many carriers in my realm over the past year and a half or two years. And so I thought I would bring it up. Again we talked about this back in 2021, but I think it’s time for a little bit of a refresher only because I can continue to see some consistent problems.

So the first thing that you have to Be concerned about when you’re talking about delegated services, and let me back up for a minute. The idea of billing a service that you didn’t personally perform is something that comes from the National Uniform Claim Committee rules on how you prepare a C M SS 1500 form.

And specifically we’re talking about the N P I number of the provider that’s represented in block 24 K of the actual claim form. And that is supposed to be according to the N U C requirements, the air quote rendering provider. Now, what rendering provider means under the N U C guidance is the provider that either performed or.

Supervise the service. Now, when we get outside of the N U C claims preparation roles, we look to there’s a Medicare rule. It’s at 45, or I’m sorry, 42 C F r four, 10.26, and it is what we call the incident two rule. And it is one of those scenarios where you’re allowed to lie about who did the service.

The other two are what used to be called the locum tenants, which is now the substitute Physician rule. And the other one is the reciprocal billing rule. I’m not gonna talk about those. But under the incident two rule, it permits you Two report services under the name of the supervising physician or other qualified healthcare practitioner.

If you meet nine requirements, now, I’m not gonna go through all nine, but the key ones are that You have to have direct on-premise supervision. The physician has to physician or other Q H P has to initiate the care and remain actively involved. And with respect to initiation, it means that the physician would have to examine, diagnose, and develop the plan of care that would be implemented by what’s called an auxiliary person at a subsequent visit under that physician or another physician.

Supervision. Now, when we, the hangup that we’re getting into isn’t direct on-premise supervision, it’s in part initiation of care and it in the chiropractic realm, it comes up most commonly with massage manual therapy. And I’ve even seen it raised with respect to therapeutic modalities and other procedures like rehab.

Now essentially, Couple things that we have to look at, and the first is your licensure rules. First, are you permitted to delegate? And if so, what specifically are you permitted to delegate and to who what are the training requirements or whatever. So you need to look in your state licensure rules, a, for the authority to delegate in the first place, and B, what you can delegate and who you can delegate it to.

Now the delegate EE or the auxiliary person, when you look at the definition of auxiliary person under this rule and understand, while this is a Medicare rule, it is a rule that most payers follow sometimes with some modulation. In which case you need to watch your carrier policies very carefully.

And sometime the modulation is to relax the role a little bit, especially relative to the supervision. Sometimes it’s to make it more restrictive, so you need to be very cautious. So we’re just gonna work on the Medicare general rule, and then from that understanding, hopefully you’ll be able to proceed and look at individual payer policies to determine whether you’re compliant or not.

Now with respect to delegation, there is the fundamental requirement that the physician or other Q H P qualified healthcare practitioner or provider has to initiate the care. And what that means is examine, diagnose, develop the plan of care. So let’s say that you’re delegating massage to a massage therapist.

Okay, now we have to differentiate delegation from a referral. So if you say, Hey, I think you need massage and you need to go see Sally, the massage therapist that’s a referral. You’re not telling the massage therapist what to do. You’re allowing them to evaluate the patient, exercise their own decision making and determine where.

What technique, how long and so forth a properly delegated service. However, you will do the examination diagnosis, and you will specifically order. What is to be done? Okay. So what I want to see in a treatment order when you’re doing delegated services is you have to identify all the variables with respect to how that service is to be performed.

So the where the technique, the how long? All of that so that you remove all decision making from the auxiliary person. And I would recommend that even, where you’re using chiropractic assistance or whatever to do stem or ultrasound or traction or whatever, make sure you write precise orders that eliminate.

All potential for decision making by the auxiliary person, and the auxiliary person would be a chiropractic assistant or a massage therapist or something of that along those lines. Now, if your chiropractic assistants required, are required to be certified, then make sure that you’re delegating to a certified chiropractic assistant because it’s likely that you’re not permitted to delegate services to an uncertified assistant if you’re in a state.

That does not certify chiropractic assistance, then read your state licensure rules very carefully with respect to delegation. In Pennsylvania, for example, there’s a very precise delegation provision in the statute. Unfortunately, it doesn’t say what you can delegate and to who. And as predicted that case was eventually taken into the appellate courts in Pennsylvania, and essentially it turned out that modalities could be delegated.

Therapeutic procedures could not. Now, in states where massage therapists are licensed, we have to again, think very hard. Yes. While they’re licensed to do these procedures. Who’s doing the decision making? Because that will control who you report the service under. So if you can get your massage therapist assuming you’re doing massage who are licensed, credentialed with an insurance carrier, do okay. Because billing those services under them when you’re doing a referral is totally appropriate. And it also solves some problems with bundling because you have different providers. Now if you can’t, if the payer does not credential and the only way you’re getting paid for massage is under you, then you have to be extremely cautious because if you do a referral, they’re functioning within the scope of their license.

If they’re working pursuant to your order. They’re just a very well-trained chiropractic assistant, and that’s a distinction that is very difficult to get a payer to understand, however, especially where your documentation isn’t precise and demonstrates that you did all the decision making relative to the service.

So again, documentation is key. There’s another concept that comes up with respect to delegation where especially if you’re, and I’m gonna stick with massage ’cause it’s a great, and it’s the most common example of where problems arise is payers look at this as pass through billing.

Now again It, it usually does not actually become passed through billing except where the carrier will credential the massage therapist. And I’ve had some cases recently out west where this was the case. And the solution was to credential the massage therapist and do the billing under them.

The. In the medical realm, you have to be careful. You have to look at the status of the auxiliary person. So for the incident two rule where they can be a leased employee at 10 99 W two, it doesn’t matter. There just has to be some type of employment relationship where the physician has the ability to exercise direction and control over the work of the auxiliary person.

However, In the pass through billing context, if you were to delegate a service in its entirety to an independent contractor who was capable of being credentialed, that’s what pass through billing is, meaning they should be credentialed, they should bill on their own. So be very careful there. Also be cautious in this context with respect to new providers.

Pass through billing can occur. If you have a new associate that’s an independent contractor, isn’t credentialed in your practice or isn’t credentialed yet rather than them be a potted plant, you think we’ll just do their billing under the credentialed provider. Be very careful with that as, and I would recommend do not do that only because those services would certainly pay differently if the provider knew.

That you did not do the service. And from that perspective, a lot of those cases generally go the fraud civil and or even criminal route. Only because intent is pretty easy to show, meaning you knew you didn’t do that service. Because cautious about that billing practice wherever you can.

As far as documentation I think it’s important to understand, especially under the incident two rule, that if anything changes with respect to the treatment, that there’s documentation that indicates that it was the supervising physician that ordered the change. Okay, so when I’m looking at massage therapy notes, and I know this visit, we’re doing this, these muscles and this visit, we’re doing those muscles that tells me the physician isn’t in control of the care the massage therapist is.

And that takes you out of the realm of incident two and which case if you are billing those services under the doctor, all that money’s going back. So be very careful and understand that an auxiliary person, and I hate to say it they get to do exactly what you tell ’em to do, and they don’t get to turn their brain on because the moment that they do and they start exercising decision making and start thinking that is where you get into trouble.

Now, in reality, they can think, but the. And identify things that maybe need to change in the treatment plan, but they have to come to you to get authorization to change that plan, and the documentation needs to support that. The other documentation piece is write precise. Orders for anything that you delegate to someone else especially if they’re not licensed that you plan to bill under you.

So I don’t care whether it’s STEM, traction, whatever, it’s always good practice to write detailed orders. So the payer, if they decide to audit you, understands exactly what you’re doing and how you’re doing it. But with respect to delegated services, I need to establish that all the details. About how to perform that service are identified so that someone like me as a chiropractic assistant can play Mike the monkey boy and go in there and turn the knobs where you told me to turn the knobs, put the pads or whatever it was where you told me to do it, and the therapy occurs exactly as you ordered it.

The other benefit to doing this is that it eliminates variability in how the patient is treated. ’cause when you have a therapy order that’s justified under your original plan of care when it changes, and there’s not an explanation why that creates problems for medical necessity. So if an order needs to be changed because of a change in the patient’s condition, that should be your your mental hack if you will, to stop.

And justify through your documentation the basis for the change and and then proceed on a new order. If you implement those things, for those of you still running on the insurance hamster wheel. That will save you a lot of aggravation and post-payment analysis and will provide your defense counsel, whoever that might be the opportunity to argue that those services were in fact, properly billed Under your name and N p I number.

That’s all we have time for this week. I hope that was informative and helpful, and we’ll see you next time.