The In/Out of Network Dilemma – Associated Risk Areas

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Hello, everyone. Welcome to this. Week’s ChiroSecure Facebook live Growth Without Risk presentation. My name is Michael Miscoe with Miscoe Health Law. And this week we’re going to talk about what I like to call the in and out of network dilemma. If you’re a solo provider, you’re either in or out, but when you have multiple providers in a practice, this issue arises where Maybe the owner position is in network and then brings in associate physicians who are not in network and potentially either elect to stay out of network or the practice never realizes that it needs to credential.

So in any event we have an in network physician and an outer network physician in the same practice, either by design or by accident. And in this scenario there are enormous compliance risks. When all the services are built under the in network doctor when potentially performed by the out of network doctor.

And that is a scenario that is potentially justifiable. And so that we dispose of any myths that you might have about the propriety of that kind of billing, meaning you’re billing under the name of. Another physician. I thought I would review the three circumstances where that is permissible.

In essence, when I teach a subject to coders and doctors I point out that these are the three scenarios where you’re allowed to lie about who actually provided the service. The first and most commonly used scenario is what’s called the incident to rule. This is a Medicare role. It’s a regulatory role.

You’ll find it at 42 CFR section four, 10 point 26. And it has a number of very quirky requirements, but essentially when you, it allows you to build the services of an auxiliary person, which can be anyone from a medical assistant or chiropractic center. Up to another physician say for example, another chiropractor in certain circumstances.

And essentially that rule requires that in this case, the in network physician would have to initiate care for the problem being treated at the encounter would have to establish the diagnosis. The plan of care, such that the out of network doctor was. Implementing the plan of care developed by the in network doctor and oh, by the way, the in network doctor has to be directly on premise to supervise and intervene if necessary, should a change in condition arise or something of that nature that would require the physician to again, assert management.

And that satisfies another element of the role which requires active participation of the supervising or. Physician. A lot of things can happen that can make compliance with the incident to rule where it is even accepted by the commercial payer, not all commercial payers recognize it some require less in terms of supervision, meaning general supervision some don’t permit it at all.

So you need to be very cautious in making any assumption that this Medicare rule has been Adopted by a commercial payer where you’re participating. So you need to check that out. Another scenario is what’s called the locum tenens rule. It used to be called the locum tenens role, but because I guess Latin is becoming less apropos, a locum tenens means stand in the shoes.

It’s now called the substitute physician role. And that’s a scenario when you, as a in-network physician, decide to take a vacation you’re ill your. Continuing education. Those are the three scenarios or your dad but, or you’ve left a PR a group practice. You are allowed to use a substitute physician to see patients who have already scheduled visits with you.

There’s a question as to whether a locums can see a new patient, because the role is written in the context of providing coverage for patients that you’re already obligated to see. So it’s potentially not applicable to new patients, although I’ve never seen it applied that strictly. And this locums physician.

Has to be somebody that is a leased employee. So you’re usually calling one 800 rent a doc. You’re getting somebody who’s licensed in your state to come in. They’re performing services on your behalf, similar to the incident to roll in that they’re implementing care plans that you’ve already established for patients that are already yours pursuant to your plan of care.

But those services are billed under your name with a Q six modifier and that alerts the carrier that you didn’t personally perform the service, but a per diem paid locums physician performed them on your behalf. The other role is what’s called the reciprocal billing role and the substitute physician role it allows you to bring in a doc that you have a reciprocal billing arrangement with somebody down the street who is going to agree to cover you.

There are no restrictions as to the reason for absence. There is with the locums rule. In either scenario, you cannot use an employed, whether it’s an independent contractor or an associate, somebody who’s routinely working in your practice as either a locums or a substitute physician or reciprocal billing, a physician.

So it has to be somebody unaffiliated with your practice that you’re paying per diem under the. To physician role under the reciprocal billing arrangement, it can be just a trade. I’m going to cover you when you need it. You’re going to cover me when I need it. When that is occurring. Then those services get filled with a modifier Q4, and that alerts the payer that you didn’t personally perform the service, a reciprocal.

Physician performed the service on your behalf, the time period where you can go away and bill either under a locums or cyclical billing is 60 days from the date of the first either substitute physician service or reciprocal billing service. So you have a 60 day period where you can go away. Now if the period of absence is longer than.

The only way to extend that period is you have to come back and see patients. If that’s not possible, then you’re stuck. Because that 60 day limitation is a hard limitation and in scenarios where physicians let’s say leave the practice maternity is the most common scenario where the period of departure is going to be longer than 60 days.

I have to bring that person back, see patients for a day or two, and then a stats so that I can establish either a new locums or a new reciprocal billing period. And that gives you an extra 60 days now, within and out of network, this gets really tricky because usually your out of network physician can’t be a locums.

They can’t be a reciprocal billing provider because they’re employed by the practice either as an independent contractor or a W2 employee. So the only option is incident to and if you strictly follow the incident to requirements, it is justifiable where the carrier adopts the incident to rule now in most scenarios.

And the reason I bring this up is that when this becomes a real big issue, when they see that the doctor that performed the services out of network, they don’t think incident to your records may be. Structured for incident two. And I’m desperate to make an incident to argument, to justify that the billing was proper under your name and NPI.

And of course, if I can establish the incident to requirements, let’s say the associate doc did the initial exam plan of care. What. We’re stuck. They see a new problem and develop, make a change to the treatment plan based upon the emergence of a new problem, even during a subsequent visit, we’re stuck.

So those are the most common ways where incident two goes off the rails. The point of a risk that I was talking about is. Where the patient either does not have out of network coverage or where they do have coverage, but the benefits are materially different, such as the carrier would not have paid as much as they would have otherwise.

That’s where payers. Extremely crazy. And usually these scenarios they refer for either to state AGS office or something for criminal analysis of criminal charges. And the reason for that is, is because the knowledge or the intent element for a crime or even a, or civil fraudulent conduct is.

You pretty much knew you weren’t the one doing the service. And nonetheless, either you build it or your staff build it out as under you. And here’s the common reasons why this happens without you knowing it in your billing service or system, you’re set up as a default provider, in which case, everything by default builds out under you as opposed to your associates.

And that’s normally the reason for it, in some cases, the physician fullest directs because the physician that owns the practice is the big guy or gal, and they want everything billed out under them. And the reason that’s foolish is because let’s just say for purposes of argument, you have 20 associates and All 20 of these people are busy all day and everything’s being built out under you.

You look super human to the insurance company because it looks like if you there’s 20 people in the office and each person is seeing 40 people a day, it looks like you saw 800 people that. Which is impossible. In which case you’re going to show up on a payer’s radar screen under what’s called an impossible day scenario.

And I had a case out in Illinois, interestingly enough, where this happened out of three different clinics. And not only did they see an enormous amount of care being billed under one provider, but it looked like the provider was in three different places all at the same time. And that triggered an audit.

As a general rule. I recommend that when you’re dealing with billing, first of all, credential your associates. If you elect to be in network, if everybody’s out of network, it’s not a problem, but in or out of network, always bill under the provider that performed the services, which in the vernacular is you eat what you kill.

Okay. So if you did the service, you bill it under you, if for your associate did the service you build under them. And if you’re absolutely certain and you had a compliance analysis, evaluate the policies or you’ve interacted with the payer to validate that it is permissible to bill services incident to, by another chiropractor who is either not credentialed or not yet credentialed I would not recommend going down that path and billing their services under you because it’s going to create a potential.

Large problem. Our first priority is to get it pulled back from either criminal or civil fraud analysis and make it just an overpayment case. And then try to demonstrate that the billing was justifiable because conformance with the incident to rule where the payer accepts it if their policies are silent on it, we’ll make the argument anyway.

But you’re probably going to end up paying back some money. But fundamentally. If you decide to be a network, try to make sure all your associates are in network. Or if you want to offer an in and out of network option to patients, then you live strictly by the eat. What you kill. You never bill incident to if the out of network doc saw the patient, it gets billed under that doc as an out of network service.

If the in network doc saw the patient, then it gets billed that way. As a. Final recommendation. Be very cautious, that. The doctor that provided the service is a doctor on the bill, the doctor, and the notes, and everything matches up. When that is not clear. I have seen payers even where it doesn’t matter deny services in post-payment analysis because well, the record says.

The service was done by this doctor. And even though that doctor’s in network and it wouldn’t have made any difference to the payment, they’d deny the service because you build it on God. So make sure that you’re tracking internally, that you have controls in place to make sure that you’re billing under the right provider.

And for those of you that, because you’re the master of your universe and you want everything billed out under you very bad strategy. Because again, it’s going to make you as an individual look like. You’re busier than you are, or more importantly busier than you can be. And you become subject to what are called impossible day audit flags.

And you’ll probably generate an audit just for that reason. And then once the audit gets started, where it goes from there it could turn into a variety of different things, even if they find that the threshold conduct that triggered the audit isn’t particularly problematic. So hopefully that gives you some insight.

Into this end out of network, you can make some decisions as to whether you want to be in. You want to be out. My recommendation is either everybody’s in or everybody’s out during the period when you hire a new physician. And they’re not yet credentialed think very hard before you build their services under your.

Pending their credentialing make absolutely certain that the payer is okay with that because they’re unfortunately unlike reciprocal billing and locums, there’s no modifier to tell the payer that’s what you’re doing. So that’s all we have time for today, I think, and next week be sure to tune in and listen to Dr.

Sam Collins till next time.