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Continuing from last week’s post explaining a possible increase in cash-based practitioners’ ability to see private-pay Medicare beneficiaries, I’ll now cover a 2013 change that takes away one avenue through which we could see these patients.
Many of you probably heard about the federal court case ruling that Medicare beneficiaries should no longer be denied coverage for skilled “maintenance care.” The case is called Jimmo v. Sebelius, and this is a great overview fact sheet: http://cms.hhs.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/Downloads/Jimmo-FactSheet.pdf
Taking info from the above fact sheet and some legal consultation, this is my take on it:
Medicare contractors who, for years, have been denying coverage for Medicare beneficiaries if they were no longer showing improvement, were actually going against established Medicare Policies (at least in the SNF settings):
For example, in the regulations at 42 CFR 409.32(c), the level of care criteria for SNF coverage specify that the “. . . restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.”
The plaintiffs of Jimmo v. Sebelius just finally called them out on this practice.
Understanding the Jimmo v. Sebelius ruling
Here are what I found to be the most important statements of the fact sheet:
A beneficiary’s lack of restoration potential cannot, in itself, serve as the basis for denying coverage, without regard to an individualized assessment of the beneficiary’s medical condition and the reasonableness and necessity of the treatment, care, or services in question. Conversely, coverage in this context would not be available in a situation where the beneficiary’s care needs can be addressed safely and effectively through the use of nonskilled personnel.
Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves.
So as I understand it (and received legal confirmation of), if physical therapy treatment/service is preventing or slowing a patient’s deterioration, and this service could NOT be provided/reproduced by non-skilled personnel (like a spouse, caregiver, personal trainer, etc), then those services would be considered “covered services” (unless they fall into other non-covered categories like “prevention, fitness, wellness,” etc), and you could Not accept self-payment from the beneficiary to provide them. If you are familiar with this post, you know that there are very few instances in which you can accept self-payment for a “covered service.”
This is great news for Medicare Beneficiaries who only want to see Medicare Providers, but not such great news for those who want to see practitioners like me who don’t have a relationship with Medicare and, until now, have been able to see them on a self-pay basis for maintenance care.
Let me know what you think about the above change and if it affects your practice in any way.
What about the cap?
There are so many practitioners of various sorts who are ignorant of these rules, but are getting away with it!
Good question. Once both caps are met, can you see a MC patient for maintenance, or even medically necessary care?
stand by guys… I need to do a bit of research and get some legal confirmation to answer your questions. Thanks
Hey Guys,
Just saw that I never came back with an answer. So sorry for the enormous delay on this … slipped “below the fold” and out of mind.
At the time of this writing, if you are a Participating or Non-Participating provider treating a beneficiary who has met the Cap, but you believe the PT services are still medically necessary, you cannot just begin taking self-payment from the beneficiary. You must submit the claims with a KX modifier (if it is between $1900 and $3700) and make sure your documentation supports the medical necessity.
At $3700, there is a manual medical review process. You can only begin taking self-payment if you get to a point at which you believe (or Medicare decides) that the services are not medically necessary.
Please note: before these services are provided on a self-pay basis, you must provide the patient an Advanced Beneficiary Notice (ABN). Please see the following document for great info on the use of ABNs in regards to the Therapy Cap: http://cms.hhs.gov/Medicare/Billing/TherapyServices/Downloads/ABN-Noncoverage-FAQ.pdf
But if they, the client, is not turning it into Medicare for reimbursement then the cash based provider is the clear. Correct?
If you are providing a “covered” service to a Medicare Beneficiary, then you (no matter what your relationship is with Medicare) are bound by the Mandatory Claims Submission requirement of the Social Security Act. So to keep it simple… if you are providing a covered service, YOU (the practitioner) must submit the claim to Medicare. If you are providing non-covered services, then you are able to accept cash-payments directly from the beneficiary for those services.
With MC beneficiaries, it’s not like with other patients in a cash-based practice … MC beneficiaries are not supposed to be submitting self-claims to MC. If they do, you can be in trouble; and if you have an unwritten agreement with them to provide covered PT services and neither of you will send anything to MC, you are taking a big risk because if MC somehow finds out about it, you’ll get in trouble.
Jarod, how would you define the difference between “maintanence” care, “fitness,” “wellness,” and “personal training?” Can you just provide them with personal training? When you say maintanence do you mean ther ex + manual therapy? So the manual therapy is what changes the terminology?
Thanks for the question, Mike. I would encourage everyone to get their own legal confirmation of this, but as I understand it, the difference between these terms is not simply based on the type of service provided (manual vs therex vs personal training, etc); it is a matter of whether or not you are trying to affect a functional impairment that has been determined to need skilled PT services. So if a MC beneficiary comes to your practice looking to “get in shape” but is not in pain or functionally limited, providing “personal training” or “fitness” services should be fine because these are things that Medicare does not consider “covered services.” But if someone comes in with back pain and you determine that they only need therex, and do not need manual therapy, that doesn’t mean you can put the label “personal training” on it and the therex all of a sudden would not be considered a covered service. I think a key part of this is the term “therapeutic” in therapeutic exercise … it is exercise prescribed by a PT that goes beyond just “fitness” or “personal training.” This is obviously a tricky realm with a lot that could be left to different semantic interpretation, so it’s one I always suggest getting an attorney to guide you through.
More specific to this post and the term “maintenance” care, and how it is differentiated … maintenance care is considered a “covered” service if it is care that prevents or slows a patient’s deterioration and could not be provided by non-skilled personnel
Thank you for your site.
I have a question about self-pay for non-covered services. My practice is set-up the same way as yours. I have not been seeing Medicare beneficiaries and have been trying to figure out this issue for some time.
There are two things that I perform that are not covered services:
Trigger Point Dry Needling. I use this in the context of manual therapy and exercise and education. Would I be able to see a Medicare beneficiary for self-pay only for the non-covered service and none of the others?
DermoKinetic Therapy is a new niche practice area. It can be Dermal Dry Needling and Rhytide Trigger Point Needling alone, but it is more beneficial in the context of treating the whole person structurally and with exercise and eduction. Similar to my first question, would only the needling part of the treatment be considered a non-covered service, or since these patients are really in the well-patient population is the entire treatment a non-covered service?
Rebecca Lowe, PT, COMT, FAAOMPT
Manual Therapy of Nashville, LLC
http://www.manualtherapyofnashville.com
Hi Rebecca, please see my response to Mike’s question in regards to when certain labels can be placed on different types of services. I have no idea if dry needling is a covered service or not. It sounds like you are saying that it is not covered service. If I am understanding your question correctly, it sounds like you are wondering if you can provide certain non-covered services mixed in with manual therapy and other services that may be covered? The take home point is this: even if the majority of your treatments are non-covered services, if you are also providing a Medicare beneficiary with anything that would be considered “covered” skilled physical therapy, claims for these services are supposed to be billed directly to Medicare by the practitioner (and you must have a relationship with MC in order to send them claims).
Like I told Mike, if you are providing dry needling along with exercise and education to a person who is not in pain or functionally limited, this could probably be labeled as wellness/fitness and remain on a self-pay basis. Again, these are tricky legal waters and you need to ask these questions of a skilled healthcare attorney in your state to make sure.
Jarod,
Thank you for your response. Yes, it is difficult to understand. I’ve also recently been told that PTs CANNOT “opt out” of accepting Medicare patients.
Rebecca
Correct… for those who are interested in more info on physical therapists being unable to “opt out” of Medicare, see this post: https://drjarodcarter.com/medicare-self-pay-physical-therapy/
I have been trying to find a good attorney that I can ask questions like this to. I am starting my own cash based practice and am trying to make sure I take all the needed legal steps to protect my license. Do any of you have any suggestions? I am in the Saint Louis, Mo area.
Thanks,
Sarah Hasser, MPT
Since I’m here in Texas, I don’t have any direct referrals (you’d definitely want an attorney who practices in your state). I would ask your local colleagues, check with your state board to see if they recommend anyone, and confirm an leads with online searches and review sites.
Gwen Simmons is a PT/lawyer who specializes in services for cash-pay private practice
Hi Jarod and all,
How do the restrictions on Medicare patients affect other insurances? Like Tri-Care and Medicaid. They are different from Medicare but tend to follow the “rules” of Medicare.
Would we, as fully Cash – Based providers, be able to treat these patients?
thanks!!
Beth Swanson, PT DPT
Hi Beth,
I’ve reached out to the APTA for help in answering this question, and I continue to wait to hear back. I’ll update and let you know once I know more
Hi. Thank you for your insight and information. The topic you cover is both confusing and frustrating….so I appreciate your diligence in giving timely and well investigated information. I have a small PP that is DBA a yoga studio. I would like to set it up as a cash based service but have many questions. The type of PT I provide is unique as it blends evidenced-based practice with yoga techniques/holistic philosophy. The traditional PT services I provide include TherEx, gait training, cold laser, and therapeutic massage. However, I also have developed a Therapeutic Yoga class that combines movement analysis/ muscle education techniques/ yoga asana and yogic breathing techniques. Can people submit this class to their insurance company? Also, I am very interested in how people set their pricing? Do many folks charge a flat rate for initial eval/treatment…then a flat rate per hour, regardless of the type of treatment?
I was thinking of $120 for the initial…then $90 for 1 hour treatment sessions. However, I’ve considered having packages of treatments, so that it would be more affordable to clients who need multiple treatment sessions. Thoughts? Thanks for your update on MC beneficiaries. I am sad not to be able to treat these folks.
Hi Ferris,
You’re very welcome, and thank you for your input and questions. I’m hoping others visiting this site will weigh in on your questions as well.
Your class sounds like something that could be billed as group therapy or therapeutic activities but coverage and reimbursement would of course depend on the individual insurance companies.
Many private-pay practices charge Flat Rates per treatment session. That can work, but billing must still be split into CPT codes and the different procedures performed; and your pricing per CPT code and total units performed obviously need to add up to that flat rate. So flat rates can cause problems if your treatment times and procedures are somewhat varied from one patient to the next.
If you want to go the route of having a flat rate per visit, then it’s easiest if the time spent in each session and the CPT codes used stay fairly consistent.. which doesn’t have to be that hard actually.
For example, before I raised my rates earlier this year, I collected $120 for each one-hour treatment, which I showed on the patient’s bill as 3 units of Manual Therapy and 1 unit of Therex at $30 each unit. If my treatment veered from these procedures, then I change it accordingly, but I charged $30 per unit of any procedure to keep things simple and consistent.