Physicians with Florida medical practices that provide physical therapy must feel at times they are playing “Whack a Mole,” given the many changes to the applicable rules and regulations, especially those that pertain to Medicare patients. Is it ok for a physical therapy assistant (PTA) to provide the services? Can the practice provide PT to people who are not patients of the practice? Does a physician have to be on premises when PT is provided? It’s just complex.
Let’s start with a couple fundamentals: first, medical practices that comply with the so called “group practice” exceptions (under both state and federal law) are permitted to provide PT to their own patients. They are more accurately known as the “In Office Ancillary Services Exception,” but most refer to them as described above. These exceptions dictate, for instance, the form of the practice and how much time each physician has to spend practicing through the group. For instance, if the practice does not have at least two of the following, it does not meet the group practice requirements: physician owner; physician W-2 employee. Second, PT falls under both the state and the federal definitions of “designated health service” (DHS). DHS are services that are regulated by the Stark Law and also (at the state level) by the Florida Patient Self Referral Act of 1992 (FPSRA). They are very similar laws, but with some key differences. Where many physicians go wrong is to ensure compliance with federal laws but not state or vice versa.
Why is it important to know that this discussion is confined to Florida “group practices” providing PT to Medicare patients? First, because the laws that apply to group practices are different that those that apply to reference PT businesses. Businesses that only provide PT are not nearly as regulated as medical practices (especially those in Florida) that provide both medical services and PT to their own patients. For instance, the issue of “outside referrals” does not arise with respect to reference PT businesses. Second, because when Medicare patients are involved, both state and federal law come into play. While state law applies to all services provided in Florida, federal law only comes into play when federal or state healthcare program dollars are involved.
Medical practices in Florida that provide DHS (like PT) to their Medicare patients have to comply with both state and federal law. And those laws are different. For instance, while federal law allows up to 25% of the time of doctors in a group practice to be spent providing services outside the group, state law is not so clear. For instance, federal law allows a practice to provide DHS to a certain amount of patients who are not patients of that group practice (“outside patients), but Florida law allows that sort of flexibility only for “diagnostic imaging services” (up to 15%). If, for instance, a Medicare patient from Dr. Smith down the street comes to your office only to get the PT your practice provides to its patients (i.e. they are not a patient of your practice), that patient will be turned away. Isn’t it ok for a Florida medical practice to provide just PT to someone else’s Medicare patient? No, because state law does not allow it.
Similarly, under federal law, a physician complies with certain supervision requirements if he or she is in the building where the medical practice is located while a Medicare patient receives DHS. In Florida, the physician in a group practice is required to be in the office (not just the building) when a Medicare (and every other) patient receives DHS in order to comply with the stricter “direct supervision” requirement applicable to patients in Florida that receive DHS (all DHS, not just PT) from a group practice.
Once a physician clears those regulatory hurdles, how can a doctor bill for PT? Essentially, there are two ways: under the provider number of the physical therapist or under the provider number of the supervising physician. The situation gets even more complex when a physical therapy assistant (PTA) gets involved.
Can a Florida medical practice bill under the provider number of a supervising MD for PT provided by a PTA to a Medicare patient? No. While applicable law requires an MD or DO to be on premises when a Medicare patient receives PT from the group practice, services provided by a PTA are considered by CMS to be included as part of the covered service under Section 220 and 230 of the Medicare Benefit Policy, Chapter 15. A Florida doctor may not lawfully supervise the services of a PTA, since PTAs (under federal law) that provide services in a medical practice must be directly supervised by an RPT.
There are also state laws that need to be followed, they differ based on physician specialty. For instance, a PTA employed by a physician other than a board certified orthopedist, physiatrist or chiropractor certified in physiotherapy must be under the onsite supervision of an RPT. Though inapplicable to Medicare, there is no provision in Florida law that allows a chiropractor to supervise a PTA.
What about if the PT services are provided by a registered physical therapist (RPT)? Though CMS does not recognize the term RPT, it does allow the services of a “qualified professional,” which includes a licensed physical therapist, to be billed either under the physical therapist’s provider number or “incident to” the services of the supervising MD or DO. “Incident to” services are services that are so integral to the services provided personally by the physician that they can be billed to Medicare as though the physician provided the service, even when the physician didn’t provide them. To comply with the rule (and for the doctor to be able to bill for it as though he or she did provide the service), the services must be:
1. An integral though incidental part of the physician’s service in diagnosing or treating an illness or injury,
2. Commonly furnished without charge or included in the physician’s bill;
3. Commonly furnished in a physician’s office or clinic;
4. Furnished under the physician’s direct supervision (e.g. physical presence in the office);
5. Furnished by the physician, practitioner with an incident to benefit or auxiliary personnel.
Though the incident to services rule is materially different from the Florida “direct supervision” requirement under the FPSRA, its effect is very similar: an MD or DO must be physically present on the premises of the office when a patient receives DHS and it is billed under the provider number of the supervising physician. One might argue that the PT’s services could be billed under the PT when the MD or DO is not on premises, but this conflicts with the direct supervision requirement of the FPSRA.
What’s the Analysis?
To comply with the State and Federal supervision requirements, group practices in Florida that provide PT to their Medicare patients must ask themselves at least the following questions:
1. Does my practice comply with the state and federal “group practice” requirements? and
2. Is an MD or DO in the office when the patient receives PT? If not, the PT may not be provided at all, since all PT in Florida group practices require direct supervision by a physician.
What are the Penalties?
At the very least, doctors who fail to comply with the supervision requirements for DHS risk (1) AHCA licensure actions; (2) having to repay the money received when they did not comply; (3) having to pay stiff fines, and in some instances (4) criminal prosecution. There have been many reported cases of physicians being investigated and fined for failing to meet the supervision requirements. And there have been numerous instances of physicians being prosecuted for failing to meet the “incident to services” rule.
If you provide PT to your patients, you must be clear about (1) the “group practice” exception provisions that allow you to provide DHS to your patients, and (2) the State and federal supervision requirements. There is simply too much at stake not to. Additionally, physicians ought to develop clear and easy to use written guidelines for compliance.