An Oklahoma physician agreed on August 28, 2017 to pay the government $580,000 to resolve allegations that he violated the False Claims Act by submitting claims to the Medicare program for services he did not provide or supervise. According to the government, the physician allowed a company that employed him and in which he had an ownership interest to use his NPI numbers to bill Medicare for physical therapy evaluation and management services that he did not provide or supervise. The government further alleged that after he separated from the company and deactivated his NPIs associated with the company, he reactivated those NPIs so that the company could use them to bill Medicare for services he neither performed nor supervised.
This case is yet another example of the very real risk involved in billing services provided to federal health program beneficiaries under another provider’s name and national provider identification (NPI) number. Back in 2011, the University of North Texas Health Science Center agreed to pay $859,500 for allegedly violating the Civil Monetary Penalties Law (“CMPL”) by submitting claims for physicians’ services provided to Medicare and Medicaid beneficiaries using the NPI numbers of 103 physicians who neither provided nor personally supervised the services rendered. Other examples include Towson University Speech Language & Hearing Center, which paid $10,000 under the CMPL for having submitted claims for audiology services with an NPI that did not correctly identify the provider who actually rendered those audiology services; a family practice physician who paid $133,880.50 under the CMPL for submitting claims to Medicare for nurse practitioner services as if he had personally performed the services; a hospital that paid $706,090.46 for violating the CMPL by submitting claims for physicians’ services provided by a doctor to Medicare beneficiaries using the provider identification numbers of another doctor, who did not further the services; and a medical school practice that paid $138,321.70 for allegedly violating the CMPL by submitting claims for physicians’ services provided by physicians to Medicare beneficiaries using the provider identification numbers of two physicians who did not furnish the services.
Although these cases involve relatively small penalties under the CMPL, the Oklahoma physician’s settlement makes clear that more significant False Claims Act liability is a very real risk for providers who bill under the incorrect provider identification number. As a reminder, services provided to Medicare beneficiaries should always be billed under the name and NPI of the provider who actually performed the services, and billing under one physician’s NPI for services that are in fact provided by another physician or non-physician provider may be viewed as fraudulent since there is little doubt that the identity of the person performing the service would be material to the government’s decision to pay the claim. The most common exception to this general rule is when services provided by non-physician practitioners to Medicare beneficiaries are billed “incident-to” a physician’s services. While CMS has acknowledged in informal guidance that a physician’s services may be billed incident to another physician’s services so long as all of the incident-to requirements, including direct supervision, are satisfied, this practice is not favored and should be used sparingly. CMS has observed that billing a physician incident to another physician is warranted only in rare circumstances.
Importantly, the incident-to rules are a Medicare invention and may not apply outside the context of Medicare billing. Many, if not most, commercial plans specifically prohibit the practice of billing the services of one provider under the name and NPI of another provider and explicitly require that all services be billed under the name of the rendering provider. Providers billing private payors must therefore review their provider contracts and health plan rules to determine whether billing the services of one provider under the name and NPI of another provider is allowed – and if so, under what circumstances – or whether it’s forbidden. If prohibited, billing under another provider’s name and NPI could result in criminal liability under the federal health care fraud statute, which makes it a crime to knowingly and willfully execute, or attempt to execute, a scheme or artifice to obtain, by means of false or fraudulent pretenses, representations, or promises, money or property owned by any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services.
Practices under pressure to pay non-credentialed physicians should think long and hard about billing the non-credentialed physician’s services under a credentialed physician’s NPI. Doing so without strictly complying with all of CMS’s stringent incident-to requirements, or in violation of private payor contracts, can spell big trouble, including penalties under the CMPL, treble damages under False Claims Act liability, and even criminal liability under the federal health care fraud statute.
If you have questions about Medicare incident-to billing requirements or billing for non-credentialed providers, please call MagMutual’s Senior Regulatory Attorney, Emma Cecil, at (404) 842-4670.
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