6 I Winter 2019 www.anjc.info re Q&A Legislative Update LegalEase LEGAL Q&A rship irector’s UPDATE INSURANCE Update By Jeffrey Randolph ANJC Legal Counsel In general and as provided by state law, physical therapy (“PT”) may be within the scope of practice of a number of health care professionals. Examples include medical doctors, podiatrists, dentists, chiropractors, nurse practitioners, physician assistants and, of course, physical therapists. PT, subject to state law limitations, may also be provided by physician (or professional) extenders as an “incident to” service. (In MD medical doctors may not employ physical therapy assistants, nor may physician assistants provide PT, chiropractors may not use any assistants not expressly authorized to provide PT.) Aside from the authority to provide a service is the issue of whether the service will be reimbursed. Under private insurance plans, there may be reimbursement limitations to the patient (i.e. daily caps or modality caps) as well as preauthorization requirements and referrals from primary care physicians. With regard to Medicare, chiropractors are defined as physicians only for purposes of providing manual manipulation of the spine and may not provide or order PT. In contrast, the Medicare laws so permit medical doctors, osteopaths, podiatrists, physician’s assistants (“PAs”) and Nurse Practitioners (“NPs”) to directly provide PT to patients and medical doctors, PAs and NPs to submit “incident to” billing, for PT services. There is a general requirement that a physician “medical doctor” or PA or NP provide certification within 30 days of care and each 90 days thereafter. Due to these limitations, many providers look to establish a multi-disciplinary practice to provide chiropractic, physical therapy as well as other ancillary services. The Centers for Medicare Services (“CMS”), by adoption of 42 CFR 484.4, effective July 25, 2005, strictly circumscribed which professions may qualify for reimbursement for physical therapy services. In short, the therapy must be provided by a physician, non-physician practitioner (i.e., PA or NP) or by an individual who has graduated with a degree in physical therapy (PT) or occupational therapy (OT). Only PTs or OTs can provide services “incident to” a physician or non-physician practitioner. If in private practice, a PT or OT may also directly provide and bill for such services. Because chiropractors are defined as physicians for very limited purposes, they may not provide physical therapy directly or “incident to” a medical doctors care. They also may not order such care for their patients. Medicare regulations outline the criteria for a PT to be considered by a therapist in private practice, including the criteria that the therapist must: 1) be legally authorized to engage in private practice and must practice within the scope defined by the licensure laws of the state; 2) be engaged in private practice on a regular basis in a permissible type of business arrangement: 3) furnish services in a private practice office space that is owned, leased, or rented by the therapist and used for the exclusive purpose of operating the practice; and 4) treat individuals who are patients of the private practice and for whom the practice collects fees for services rendered. As a result of Section 952 of the Medicare Modernization Act, the Medicare reassignment rules were changed to allow for the reassignment of any services that are provided under a contractual arrangement. Effective Dec. 8, 2003, Medicare carriers were instructed to “make payment to an entity (i.e., a person, group, or facility) enrolled in the Medicare program that submits a claim for services provided by a physician or other person under a contractual arrangement with that entity.” Prior to this change, only employees of the medical practice could reassign their rights for the group practice to bill Medicare. That said, a basic premise of the reassignment rules is that an individual can only reassign rights that he or she possess, i.e., no greater right can be granted by the reassignment. The statute and regulations defining the criteria to qualify as a therapist in private practice expressly require that the therapist be an employee of a physician group practice and maintain the office space at his or her expense. These requirements do not provide any exceptions for the therapist to be in a contractual arrangement with the physician or to have someone other than the therapist absorb the cost of the clinic operation. Despite these seemingly clear requirements, CMS issued guidance with an effective date of Feb. 11, 2004, to clarify Medicare enrollment policies for therapists in private practice. Under this new guidance, CMS expressly provides for the therapist in private practice to “be either salaried W-2 employees or contract 1099 employees.” The revised guidance continues by indicating that the “services must be provided on the premises that are rented, owned or leased by the physician group.” Although the physician group is absorbing the cost of the clinic and billing for services through the reassignment, the therapist in private practice is the provider of service, not the physician. Therefore, the therapist would not need physician supervision while therapy services are being rendered. Furthermore, under this scenario, the therapist could provide the requisite supervision of therapy assistants. Certain physician oversight requirements still remain; however, the physician supervision requirements do not apply. The same procedures for billing the services of physicians who reassign their right to bill would be utilized. The treating therapist’s Medicare provider number and other identifying information would be included on the claim. In conclusion, to the extent that this multidisciplinary setup is going to be pursued, caution should be taken to be sure that the arrangement is set up correctly. Consultation with a healthcare attorney who specializes in these structures and transactions is a must to ensure compliance with the myriad of statutes and regulations involved. Physical Therapy in the Multidisciplinary Office