Chiropractic Articles:

MEDICARE BILLING FOR NON-COVERED CHIROPRACTIC SERVICES

PROBLEM

Can providers collect their regular full fee from Medicare patients when the service is denied or not covered (such as Maintenance care) by Medicare?

Many offices and billers are confused and want true facts to avoid any improper billing.

SUBJECTIVE HISTORY

Historically, patients who are Medicare Part-B beneficiaries have the benefit of limited out-of-pocket expenses for their "covered" health care services. Medicare Participating (Par) doctors are constrained by the Allowed Amount, and are prohibited from collecting from the patient more than 20% of the Allowed Amount. Non-Participating (Non-Par) doctors are constrained by the Limiting Charge, and they cannot collect more than the Medicare Allowed Amount x .95% x 115%. This Limiting Charge is published by Medicare. Whenever a Non-Par doctor elects to Accept Assignment in box 27 on a 1500 claim form, they can not collect more than 20% of 95% of the Allowed Amount.

Some states have laws that go beyond Medicare regulations. They have passed limiting fee statutes (as referenced above), as well as balance billing statutes that may affect the amount you may charge a patient for services.

OBJECTIVE FINDINGS

Medicare Carriers Manual 50.7.7.4 - Collection From Liable Beneficiary, Rev. 1, 10-01-03 (Although this old manual is being replaced by the Medicare Online "Pub" System, we expect to see the same information in the new system soon):

"When an ABN was properly executed and given timely to a beneficiary (who, if RR applies, agreed to pay in the event of denial by Medicare) and, in fact, Medicare denies payment on the related claim (whether assigned or unassigned), the physician or supplier may bill and collect from the beneficiary for that service. Medicare does not limit the amount which the physician or supplier, participating or nonparticipating, may collect from the beneficiary in such a situation. Medicare charge limits do not apply to either assigned or unassigned claims when collection from the beneficiary is permitted on the basis of an ABN. A beneficiary's agreement to 'be personally and fully responsible for payment' means that the beneficiary agrees to pay out-of-pocket or through any other insurance that the beneficiary may have, e.g., through employer group health plan coverage, Medicaid or other Federal or non-Federal payment source."

ASSESSMENT

The preceding from CMS does not correlate with the statutes, and it is inaccurate when the denial is based on Medical Necessity. It further presumes that an Advance Beneficiary Notice ABN is necessary for a non-covered service, which is incorrect.

In addition to the above citation, there is the MedLearn website by CMS/Medicare. It has an ABN decision tree that is supposed to be instructive in this matter. It indicates that when manipulation is provided and is then denied for reasons of necessity (and a completed ABN is on file) that your usual and customary fee can be demanded from the patient. However, according to Mr. Michael Miscoe, a subject matter expert in coding and compliance, "this ABN tree and statement could only be accurate if the limiting fee provisions of the Medicare statute for "full charges" means the allowed amount and that there is no state statute that provides a limiting fee provision relevant to services provided to Medicare beneficiaries.

In evaluating the ABN decision tree with respect to the definition of "full charges," Mr. Miscoe stated, "I don't read the ABN tree as being so limited. On this basis alone I would disregard the ABN tree as even being persuasive on the matter. It is certainly not controlling. Moreover, it should be noted that some of the instructions on this form are in conflict with the interpretive guidance found in the Claim Processing Manual (Pub 100-4, Ch. 30, §40), as well as the Medicare statute. As a result, the ABN decision tree is misleading and unpersuasive as to the actual Medicare statutory rule as well as the CMS interpretation of the statute found in their own publications."

"There is a reasonable question as to whether the federal statutory limiting fee provisions apply to non-covered services. Because of the significant penalty for getting it wrong, I have always taken the position that they do apply. It is also important to understand that the ultimate answers are circumstantial to the specific case at issue. It could be different where there are different facts (such as different state, different service, medically necessary or not, etc.) "Given the obvious error in the ABN tree provided, as well as a number of other CMS publications including MedLearn, I never pay too much attention to these documents unless the guidance provided can be justified under the Medicare Statute or Regulations. However, they are instructive as to what someone at CMS thinks the rule is. But any such commentary does not and cannot supersede the statutes/regulations. At the end of the day, the federal/state statutes and regulations control how much a PAR or Non-Par provider may bill/collect for services to Medicare beneficiaries. For this reason, providers are advised to seek competent legal advice before adopting a policy regarding the charging of fees in excess of the published Medicare fees. Analysis is necessary under the Federal Statute as well as any state limiting fee provision."

"Since Maintenance care is not covered, the (ABN) would be necessary when reporting the service to Medicare. If you read the ABN guidance carefully in Pub 100-4, Ch.30 §40, you will find that providers will have a substantial problem justifying that the ABN they will create provided sufficient "notice" and on this basis, if challenged, will not hold up and the provider will be precluded from collecting for the service. This is another whole issue."

In addition to the above informative assessment by Mr. Miscoe, the ChiroCode Institute also takes a practical business perspective. We do not recommend exceeding the Limiting Charge because a patient might wonder about their doctor's integrity and have less confidence and appreciation. When care has reached a maintenance status (Medicare's definition of 'not medically necessary') and the fee goes up, the patient might not be happy. Typically, many Medicare patients need repeated explanations as to why they now have to pay more for the same service.

PLAN

Develop your own personal decision tree for your office (Par or Non-Par in Part B), which can go beyond the Medicare decision tree. Therefore,

Decide if your service is Non-covered under Medicare statutes/regulations.
Discover if you have a local state statute applicable to Balance Billing for Medicare fees.
Assess your risks in losing patients by exceeding your limits (Par or Non-Par).

Mr. Miscoe is the President of Practice Masters, Inc., a Certified Professional Coder, Certified Healthcare Compliance Consultant, and a member of the National Advisory Board of the American Academy of Professional Coders. He has over 18 years billing experience and 12 years of consulting experience with a wide variety of healthcare provider specialties. He provides expert assistance and analysis related to civil and criminal false claims and post payment recovery cases with special emphasis and expertise on evaluation and management, physical medicine and electrodiagnostic test services.

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