 Introduction
 ‘Incident to’ is a phrase that describes the delivery of
certain services through an individual other than the actual healthcare practitioner; ie, electrical stimulation performed by a chiropractic assistant ‘incident to’ a doctor of chiropractic. The current discussion about the ‘incident to’ regulations is related to standards surrounding the delivery of physical medicine services.
As of July 25, 2005, for therapy to be reimbursed in Medicare, the therapy must be delivered by either a physician or someone that qualifies as a "therapist".
- Typically, this would be someone that has graduated as a physical or occupational therapist. For the full educational requirements as outlined in 42 CFR 484.4 click here.
- Note that this person does not have to be licensed: they just must meet certain educational requirements.
- As stated in the Medicare Benefit Policy Manual, Chapter 15, section 230.05:
“Qualifications of Auxiliary Personnel.
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Medicare is authorized to pay only for services provided by those trained specifically in physical therapy, occupational therapy, or speech-language pathology. That means that the services of athletic trainers, massage therapists, recreation therapists, kinesiotherapists, low vision specialists or any other profession may not be billed as therapy services.”
ACA Action
This issue is far-reaching and is having a significant impact in many professions. The ACA has been involved with voicing objections to this rule for years and is continuing to monitor the issue, engaging in the following activities:
- Expressing our concern over these regulations since as early as October of 2003 to Centers for Medicare & Medicaid Services (CMS) and other relevant entities. We are especially concerned about the impact in the private sector.
- Acting as part of the Coalition to Preserve Patient Access to Physical Medicine and Rehabilitation Services. Other participants in the Coalition include the American Academy of Family Physicians, American Academy of Physical Medicine and Rehabilitation and American Orthopaedic Society for Sports Medicine.
- To view a position statement from the Coalition, click here.
Q & A’s
But doctors of chiropractic are only reimbursed for manual manipulation of the spine to correct a subluxation under Medicare---so how would this even affect doctors of chiropractic?
These new regulations mainly affect doctors of chiropractic currently practicing in one of the Medicare chiropractic demonstration project areas, as for other doctors of chiropractic, such physical medicine services are non-covered under Medicare. Other doctors of chiropractic who may be affected are those practicing in multi-discipline practices providing physical medicine services incident to another physician. These DC services will NOT be reimbursable unless they meet the requirements in 42 CFR 484.4.
At this time, the biggest issue for chiropractic as a profession is the possibility that these regulations could jump to the private sector. (See ACA's letter to Wellmark Blue Cross/Blue Shield on October 24, 2005 in the ACA Action area.)
I’m in the Medicare Chiropractic Demonstration Project. Can I have my chiropractic assistant perform these services?
Yes. Per the CMS website:
“… chiropractors may bill the beneficiary for the cost of services that are not covered by Medicare. We recommend that chiropractors use a Notice of Exclusion of Medicare Benefits (NEMB) form and inform the beneficiary that the service would be covered by Medicare if it was performed by a qualified Medicare provider of therapy services (i.e., physician or qualified therapist). This form can be found by clicking here.
If a CA is providing physical therapy service(s), the claim should be submitted without “demo 45” in Box 19 on CMS-1500 forms and, alternately, without “45” in 2300/REF02(P4) on electronic claims and have a GY modifier appended (e.g. 97035 GY). In this manner, the chiropractor will receive a denial and be able to bill the beneficiary for these services.”
Please also remember that these services are reimbursable if performed by the physician.
More on the Demo
What can I do?
Be on the lookout for any communication from your private insurer that seems related. Please send any and all information to Kara Murray.
Continue to check this website for further updates. If you have questions, you can contact the ACA at 1-800-986-4636 or contact Jaime Mulligan at jmulligan@acatoday.org or Kara Murray at kmurray@acatoday.org
Additional Background
National Athletic Trainers Association (NATA) Lawsuit
On May 27, 2005, NATA filed a lawsuit challenging the implementation of the “incident to” regulations. The suit, filed in the federal U.S. District Court in Dallas, was dismissed on jurisdictional grounds on July 21, 2005. NATA has decided to appeal this decision.
Special Alert from July 25, 2005
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“Incident to” Regulations Now in Effect
Court Dismisses NATA Suit Against HHS and CMS |
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The US District Court Northern District of Texas in Dallas has dismissed a suit filed by the National Athletic Trainers' Association (NATA) against the US Department of Health and Human Services (HHS), the Secretary of HHS, and the Administrator of the Centers for Medicare & Medicaid Services (CMS) for lack of subject matter jurisdiction. This dismissal will allow for CMS to implement rules regarding "incident to" therapy services: Medicare beneficiaries may only receive therapy services from either the physician or a physical therapy qualified practitioner other than licensure (meeting the physical therapy definition at 42 CFR 484.4 other than licensure) in physician offices.
In the Memorandum Opinion and Order, the document dismissing the suit, the court declared it "is not convinced that physicians have a protected interest in using 'auxiliary personnel' to perform therapy services." The suit sought to overturn regulations issued last November by CMS that established personnel qualifications for physical therapy and occupational therapy services provided "incident to" the services of a physician in a physician's office. Those standards, based on provisions adopted by Congress in the Balanced Budget Act of 1997, require that individuals who are trained specifically in physical therapy provide all out-patient physical therapy services.
CMS had previously agreed to delay implementation of the regulation and manual provisions governing qualifications for auxiliary personnel furnishing services billed as physical therapy and occupational therapy services incident to the services of a physician or non-physician practitioner. By the terms of the agreement, CMS delayed implementation until July 22, 2005. However, as the court has now ruled in favor of CMS before the July 22, 2005 deadline, CMS will issue instructions requiring implementation of the provisions of the regulation and manual.
CMS manual provisions to take effect immediately and chiropractors under the demonstration are now subject to these requirements. This means that when a physical therapy service is provided "incident to" the service of a chiropractor, the person who furnishes the service must be a qualified physical therapy practitioner (physician or physical therapist) Chiropractors participating in the Medicare Demonstration Project should now bill for therapy services as they did prior to this lawsuit. ACA continues to raise objections to these regulations as we have since October 2003.
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