Q&A: Billing Issues Affecting Behavioral Health Providers

Senior Counsel Theresa DiGuglielmo, Esq., whose regulatory healthcare practice includes work with Behavioral Health providers, recently interviewed James M. Tudor, CPC, PCA, Director of Billing Compliance for HealthCare Compliance Network (“HCN”), regarding billing issues of which Behavioral Health Providers should be aware.  Theresa is now sharing the transcript from that interview. 


Theresa: I recently read about an enforcement action against a behavioral health provider that allowed unlicensed individuals/providers-in-training to furnish the services, and billed them under the licensed provider’s billing credentials.  Is this a common practice?


Jim: Yes, we have seen significant clawbacks for this conduct.  In general, unlicensed providers are not eligible to submit claims, either independently or under a supervising provider (i.e., “incident to”).   Similarly, uncredentialed providers are not allowed to submit claims until the certification process has run its course.  Many practices are under the false impression that it is acceptable to submit claims for services furnished by a non-credentialed individual under a credentialed provider, but they are mistaken, and when payors identify the issue, there is a high probability that they will seek to invalidate the claims and recoup the applicable reimbursements.


Theresa:  When is “incident to” billing available/appropriate, taking into consideration site-of-service and other requirements?


Jim: As you know, fundamental knowledge of “incident to” billing is often lacking.  Many practices are under the impression that once the initial visit with the physician or other applicable plenary licensee occurs, all subsequent visits for the same issue(s) are automatically qualified as “incident to.”  This is seldom true, whether it is a Medicare patient, or another payer following their own version of incident to.  It is important to understand how often the patient needs to be seen by the physician or other plenary licensee.  For example, many providers are not aware that when billing incident to, if there is a change in the plan of care, the physician must see the patient first and approve the changes.   As for site of service, “incident to” billing is not allowed in any facility setting.  However, if, for example, a physician and nurse practitioner see a patient on the same day, a ‘split’ visit can be billed under the physician as long as each provider documents their respective visit.  That is just the tip of the iceberg… there is so much more to “incident to” billing and many landmines for providers who don’t understand the requirements.


Theresa:  What are the issues you see in audits of psychotherapy services?


Jim: The most common reason we see for psychotherapy being disallowed in audits is that the time spent is not properly recorded.  Many providers are under the false impression that the appointment logs or schedule is acceptable in lieu of documenting time in the patient’s progress note.  This is absolutely not the case; anything short of personalized documentation of time by the provider will likely be disallowed in an audit.  Another pitfall occurs when psychopharmaceutical management occurs on the same day as psychotherapy.  This is a two-code situation:  9083X for the psychotherapy, and an E/M code for the medication management.  The provider should carve out the time spent providing medication management (e.g.,“I spent 45 minutes providing psychotherapy today, exclusive of separate time spent performing medication management”).  We have also seen many audits result in adverse consequences because the provider does not sufficiently describe the interactive process which took place, what type of psychotherapy was used, other modalities, etc.   


Theresa:  Telehealth really entered the mainstream during COVID19 pandemic, but with the expiration of waivers on the horizon, providers will need to re-evaluate their practices for compliance. As a certified professional coder, what are you expecting to see?


Jim: CMS has extended telehealth coverage under the PHE to the end of 2021.  At that time, we may see new documentation guidelines, more attention to standard of care, frequency limitations, etc.  In the interim, CMS has instructed providers to document a telehealth encounter in the same manner as if the visit occurred in the office.  The note must also indicate the name and location of all individuals involved in the furnishing of the telehealth service, including the provider.


Theresa:  The coding changes that took effect January 1, 2021 are the first significant revisions to the E/M coding guidelines since 1997.  From your perspective, what do providers need to know?


Jim: The coding changes are less burdensome from a documentation standpoint, and no longer require the provider to meet certain numeric thresholds on the history and exam elements.  They also take into account social determinants of health (SDOH), many of which influence the patient’s health status, access to care, ability to afford their medications, etc. SDOH were not present in the prior iteration of the guidelines, so providers are now in a learning curve of determining how to discern and document SDOH properly.   Another change involves the role of time in an office visit, which has been expanded to permit time spent reviewing records, communicating with other professionals/family, placing orders, issuing prescriptions, and any face-to-face time spent with the patient.  There are still some grey areas, but overall, the new rules are much more user-friendly and intuitive.


Theresa:  Thanks very much for these insights, Jim. For clients facing investigations or audits with significant clawbacks, a robust defense is typically the result of a collaboration between an experienced healthcare attorney and a certified professional coder such as yourself. 


Jim:  HCN and Frier Levitt have achieved some great outcomes for clients, and I’m personally very proud of the fact that together, we are often able to substantially reduce a provider’s liability for an overpayment.  


Theresa: Yes, it is extremely rewarding to help a worried provider navigate the stressful experience of an audit or investigation, and when possible, mitigate the impact of adverse findings.  Our collaborations are often valuable in terms of immediate financial relief, and also because “pushing back” signals to the payor that the provider is not an easy target for future clawbacks.

Frier Levitt attorneys have deep experience with government and commercial payor audits.  For more information, contact our office to speak with an attorney.