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