Billing for Advanced Practice Professionals (“APPs”) has been a challenging area for providers and practitioners because of different and changing Medicare, Medicaid and state law requirements. Medical record documentation and employment relationships are key to supporting how services are provided and billed. Although the Centers for Medicare & Medicaid Services (“CMS”) and regulators have expanded coverage for APPs, regulators do review these arrangements, and recently we have seen an uptick in enforcement activity for APPs. While this article will focus on just one aspect of APP coverage, split and shared care, we recommend that providers and practitioners examine their various APP arrangements and claims very closely to confirm that the services are provided and billed correctly.
Split and Shared Care Visits
Medicare regulations do not allow a physician to bill for services provided incident to their professional services in the hospital, because “incident to” services are paid to the hospital through the facility payment. The only exception to this rule is if the physician and an APP provide “split or shared care.” Split and shared care allows both a physician and an APP to provide care to a hospital patient as long as certain requirements are satisfied.
Longstanding CMS policy has been that, for split or shared visits to be covered in an institutional setting, where “incident to” billing is not an option, physicians can only bill for the services when the physician performs a substantive portion of the service. This standard was interpreted and applied differently by various Medicare contractors and was difficult to review/audit.
While CMS previously announced its intention to move to a time-based approach to defining “substantive portion” (meaning a physician must spend more than half the total practitioner time spent in order to bill for the services), the 2024 Medicare Physician Fee Schedule (“MPFS”) Final Rule amended this definition to include either the time-based approach or medical decision making. Therefore, when split or shared care is provided and billed, the billing clinician is the one who furnished either more than half the total practitioner time as defined by CMS or performed a substantive part of the medical decision-making to fulfill the “substantive portion” requirement. Critical care visits will continue to only use the time-based approach to “substantive portion.”
Under either standard, the medical record documentation will be important to support the claim. As such, both the physician and APP must carefully and accurately document the services they provide.
Surgical procedures and services are bundled into a global payment, which includes all of the services that are provided in connection with this surgical procedure during the global period. However, this does not mean that the surgeon must provide every service from the history and physical to the adjustment of medication. In fact, Medicare’s Conditions of Participation explicitly contemplate an APP’s ability to perform a history and physical prior to surgery, stating as follows:
A medical history and physical examination [must] be completed and documented for each patient no more than 30 days before or 24 hours after admission or registration, but prior to surgery or a procedure requiring anesthesia services, and except as [otherwise] provided … in this section. The medical history and physical examination must be completed and documented by a physician (as defined in section 1861(r) of the Act), an oral and maxillofacial surgeon, or other qualified licensed individual in accordance with State law and hospital policy.
42 CFR 482.22 (emphasis added).
However, the bundling of payment for these services raises compliance concerns for providers who use APPs. Importantly, if services are performed as split or shared care, the physician or the physician group must incur the expense of the APP. Otherwise, when the APP performs some of the services included in a global payment, the physician could be viewed as getting paid for services he or she did not perform or incur the expenses for and there is risk under the Anti-Kickback Statute (“AKS”).
Recent Activity
On December 14, 2022, the Office of Inspector General (“OIG”) issued Advisory Opinion No. 22-20, which approved an arrangement where an acute care hospital with two campuses (“Requestor”) provided the services of its employed APPs (specifically nurse practitioners (“NPs”)) free of charge to help physicians with non-surgical unit patient care, provided the physicians or their designees were still rounding with their patients daily. In the opinion, OIG acknowledged that giving free services to referral sources would constitute remuneration under the AKS “if the requisite intent were present.” However, based on the unique factors present with the described arrangement (“Arrangement”) in question, OIG determined that it would not pursue administrative sanctions against the requesting hospital.
Key considerations in OIG’s analysis include the following:
- The Arrangement implicates the federal AKS because Requestor is providing remuneration in the form of NP services to participating physicians that could induce such physicians to make referrals to Requestor for items and services reimbursable by a federal health care program.
- Under the Arrangement, Requestor assigns its employed NPs to perform a range of tasks that participating physicians would have to perform as part of their responsibilities to care for their patients from the time of admission to the time of discharge. Services performed by Requestor’s NPs on behalf of the participating physician potentially relieve the participating physician of tasks and services on which they otherwise would have to spend their time and resources, and allowed the participating physician to perform other separately billable services.
However, OIG found that the following facts mitigate the risk that the Arrangement is used to reduce or reward referrals:
- The Arrangement is restricted to predominately primary care physicians for two non-surgical, non-specialty units at one of Requestor’s hospital campuses. Surgical and specialty services may have resulted in more lucrative referrals to Requestor.
- Requestor certified that it does not take into account a physician’s volume or value of expected or past referrals when offering the Arrangement.
- The Arrangement contains safeguards that lower the risk of fraud and abuse under the federal AKS. For example, the NP communicates and collaborates with the participating physician and the participating physician must round with the patients daily.
- Requestor also certified that participating physicians in the Arrangement are prohibited from billing for services performed by the NPs and can bill for services only when they have documentation supporting the work they personally performed.
- Requestor certified that it does not bill any payor, including federal health care programs, for the services performed by the NPs.
Over the last few years, there have been a number of Civil Monetary Penalties (“CMP”) cases, where health systems that have deployed “free APPs” have agreed to pay to settle any potential claims of improper remuneration to physicians in the form of clinical staff who performed services included in a bundled payment. Thus, it is clear from the above advisory opinion and self-disclosure settlements that certain mitigating factors must be present in order for this generally prohibited remuneration to avoid enforcement risk.
To maintain compliance, providers must ensure that internal operational policies support the billing decisions that adhere to both government and commercial payers’ requirements. APPs should be enrolled and credentialed so that providers have the flexibility to direct bill in the absence of meeting split/shared visit guidelines. Before submitting a claim under a physician’s NPI, the medical record should be reviewed for evidence of that physician’s involvement. Finally, providers should scrutinize how they make APPs available to independent referring physicians to protect against any potentially prohibited remuneration.
Practical Takeaways
While the use of APPs can be a useful tool in enhancing the care that is provided to patients, providers should be aware of the potential compliance concerns that are associated with such use. We recommend that providers and suppliers:
- Stay up-to-date on the regulations and guidance related to coverage and billing for APP services. This includes both state and federal licensure, coverage and billing.
- APPs should be enrolled in the Medicare and Medicaid programs and credentialed with commercial payors.
- Review arrangement with APPs to assess employment and contractual arrangements, how services are being provided and how the services are being billed.
For help understanding your legal obligations or investigating a potential issue, please contact:
- Lori Wink at (414) 721-0456 or lwink@hallrender.com;
- Scott Taebel at (414) 721-0445 or staebel@hallrender.com;
- Kaitlin Nucci at (248) 457-7838 or knucci@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
