Billing “Incident To” PT, OT and SLP Services Furnished via Telehealth During COVID-19 Pandemic

Did you know there is a very strong argument you can bill PT, OT and SLP provided via telehealth as long as they are incident to a physician?  During the Covid-19 crisis, telehealth visits are safer for medical professionals and patients.  But in a recent interim final rule CMS said that the telehealth statute doesn’t allow physical therapists, occupational therapists and speech language pathologists to “furnish” telehealth services.  That is because the portion of the Medicare statute authorizing telehealth services, Social Security Act Section 1834(m) has a list of “professionals” who can provide telehealth.  The list is found at 1842(b)(18)(C)).  While PAs, NPs, CNSs, and a number of other professionals are permitted to furnish telehealth, PTs and OTs are not.

The good news is that the statute offers a solution to this problem as long as the telehealth service meets the requirements to be billed “incident to” a physician’s services.  The law says that when a service is furnished “incident to” a professional, it is the professional who is “furnishing” the service.  See 1842(b)(18)(D).  

In the preamble to the interim final rule, CMS said that it is permissible to provide physical and occupational therapy via telehealth, as long as the therapy is not “”furnished” by a PT, OT or SLP.  The text written by CMS specifically uses the word “furnish,” saying that Medicare “does not provide for payment for these services as Medicare telehealth services when furnished by physical therapists, occupational therapists, or speech-language pathologists.” (Underlining added.)  But when therapists provide the service incident to the physician, that statute indicates it is the physician who is “furnishing” the service. 

It is important to note that so far CMS has not adopted this position. In fact, during an “Office Hours” phone call on April 14th CMS employees stated that current Medicare policy does not allow therapists to provide therapy via telehealth either directly or “incident to” a physician.  CMS stated that they want to permit therapy to be done via telehealth, and they are confident that they will find a way to permit it, but they stated it is not currently possible.  However, I do not believe that they have considered this legal argument because it provides a clear path to cover the telehealth services.  During this public health crisis CMS wisely wants to encourage, and pay for, telehealth whenever possible.  There is a clear statutory route to cover telehealth therapy services incident to a physician.  Given that, it makes perfect sense for clinics to use this option.  While there is certainly some risk associated with the decision to bill for the incident to services given CMS’ public stance, the statutory argument is strong enough, and the public health need compelling enough, that if I ran a practice, I would definitely use the option.

Unfortunately, this legal argument doesn’t work for services that are not “incident to” a physician.  Since services incident to a physician’s services are not separately paid in outpatient hospital departments, this argument doesn’t support billing for hospital-based telehealth therapy.  (During the April 14th call CMS indicated it was also confident that it would find a way to cover telehealth therapy provided in hospitals.)  To rely on this legal argument it is necessary to meet all of the conditions of incident to billing.  For example, a physician must initiate the course of treatment, and remain involved throughout its course.  The physician must also meet the supervision requirements.  During the crisis, that means the physician must be “immediately available” via a device with audio and visual capability.  But if the incident to requirements are satisfied, the statute suggests that the services should be considered reimbursable by Medicare. 

Of course, the fact that Medicare covers a service doesn’t ensure that Medicaid or private payors will do the same.  But given the benefits to everyone of using telehealth when possible, it would be reasonable to notify other payors that you will be doing telehealth therapy, and place the burden on the payor to tell you that they won’t cover it.  Sending an email to the payor inviting them to object if they have concerns will make it very difficult for them to deny payment unless they respond.

About the Author:

David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron’s Health Law Group and helped establish its Health Care Fraud & Compliance Group. David helps healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes.

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