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Court Upholds Incident-To Supervision Requirement


Medicare has the right to require a physician to personally supervise non-physician practitioners when they're billing for services under the physician's number on an incident-to basis, a court ruled.

The 9th U.S. Circuit Court of Appeals upheld a district court verdict that Dr. Gary Gibbon must repay $600,000 for nurse and therapist services he billed incident-to his own provider number between 1995 and 1997. Gibbon argued that the Medicare rule requiring his physical presence when he supervised these providers was invalid for a few reasons.

1. First, Gibbon said that the current definition of "incident-to" came out in the Medicare Carriers Manual and never went through the process of having a proposed rule with comment period. Therefore, Medicare shouldn't apply the rule to him. The court rejected this argument, saying the statute's definition of "incident-to" is vague and the manual was within its rights to provide a definition.

2. Gibbon also argued he wasn't aware the services wouldn't be covered, and consequently billed under good faith and should be paid.

3. Finally, Gibbon said the rule violated the "equal protection" clause because Medicare requires the physician's presence in board-and-care facilities, but not in hospitals or skilled nursing facilities. Therefore, Medicare was discriminating against Gibbon's patients. But the court said that the distinction made sense because a skilled medical practitioner is always nearby in a hospital or SNF.