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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
This article describes some of the major compliance requirements for medicare providers working with in the Fee-For-Service system.
By Sara Jasper, JD Staff Attorney The Therapist May/June 2024
As of January 1, 2024, licensed marriage and family therapists (LMFTs) and mental health counselors (MHCs, aka licensed professional clinical counselors (LPCCs)) who meet all of Medicare’s requirements are eligible Medicare providers.1 Eligible LMFTs (and LPCCs) have the following options:
For LMFTs and other mental health providers who want to participate in the Medicare feefor- service system, this article covers some of the major provider compliance topics and offers resources for those who are working within the FFS, or original, system.
FFS Total Enrollment Process Once approved by their Medicare Administrative Contractors (MACs), FFS providers will need to complete the following steps:
Step 1: Enroll with Electronic Data Interchange (EDI). Step 2: Register and create an account with the MAC(s) Medicare Portal.
Providers who complete the total enrollment steps will be able to submit claims, access payment information electronically, view patients’ Medicare eligibility, and more. For additional information and instructions on how to complete the total enrollment process, California-based providers can visit Noridian Healthcare Solutions LLC’s page on total enrollment: https://med.noridianmedicare.com/ web/jeb/enrollment/total-enrollment.
Those who are rendering Medicare services from locations other than California should visit their MAC’s website to carry out the total enrollment process. Contact information for all the MACs can be found within the Medicare Corner section of CAMFT’s website: Interactive Map (camft.org).
Discussing Medicare With Patients Now that most LMFTs (and LPCCs) are eligible Medicare providers, these provider types are legally and ethically obligated to discuss Medicare with their patients. All eligible licensed providers should decide whether to opt in or out of the Medicare system. Whether eligible or ineligible, providers should disclose information about their Medicare status (e.g., enrolled as an FFS provider, enrolled as an MA provider, opted out of Medicare, or not a Medicare provider) to their patients. To support providers’ efforts to communicate with patients about Medicare, CAMFT has revised its sample informed consent template and the instructions on its use to reflect LMFTs’ (and LPCCs’) involvement in Medicare: https://www.camft.org/Members- Only/Sample-Practice-Forms.
Checking Medicare Patients’ Eligibility Medicare providers may check their patients’ eligibility using the following online tools and services:
Documentation Requirements CMS requires documentation for psychotherapy services to include the following:
While neither CMS nor the MACs have progress-note templates, these entities offer guidance on how to document psychotherapy services. CMS offers support through the Medicare Learning Network’s (MLN’s) Medicare Mental Health booklet (https:// www.cms.gov/files/document/mln1986542- medicare-mental-health.pdf). The Mental Health: Psychiatry and Psychotherapy Services section of Noridian’s website also provides information on this topic (https://med. noridianmedicare.com/web/jeb/specialties/ mental-health). Documentation Signature Requirements Medicare FFS providers are required to sign and date their psychotherapy records. During medical reviews, Medicare claims reviewers look over records to see that they meet signature requirements. If records are not signed and dated, the corresponding claims may be denied. CMS defines a handwritten signature as a mark or sign the provider makes on a document representing the provider’s knowledge, approval, acceptance, or obligation. For a signature to be valid, the signature must be for services rendered by the provider, it must be handwritten or electronic3, and it must be legible or confirmable by comparing the signature to a signature log or attestation statement. Providers are not permitted to add “late”4 signatures to medical records.
If a medical record is not signed, the provider or their organization should prepare an attestation statement. Except for orders, signature attestations are permitted for medical records. The attestation must be associated with a medical record and created by the author.
In the event of a review, the provider or their organization may send a signature log or attestation statement to support the identity of any illegible signatures. A printed signature below the illegible signature in the original record is acceptable. Signature logs can also help to address issues of illegibility. A signature log is a typed listing of practitioners that shows their names with corresponding handwritten signatures. This can be an individual log or a group log. CMS encourages, but does not require, practitioners to list their credentials in the log. As with attestations, signatures logs can be created at any time. Providers who use electronic health records should familiarize themselves with Medicare’s guidelines for use of electronic signatures. Providers and organizations that choose to sign their records electronically must use systems and software products that include protections against modification. Providers and their organizations should also use administrative safeguards to make sure they are complying with all applicable laws and standards related to electronic signatures.
Record Retention Requirements Federal regulations require FFS providers to maintain medical records for seven years from the date of service.5 Practitioners may rely upon an employer or another entity to maintain records. However, if the practitioner receives a medical records request, the practitioner is individually responsible for providing the medical records to CMS or to one of its contractors that is doing the audit. Providers must comply with the document maintenance and access requirements to maintain their Medicare enrollment.6 Failure to comply with these requirements may result in enrollment being revoked.7 If CMS revokes a provider’s enrollment, the provider is barred from participating in the Medicare program from the date of the revocation until the end of the reenrollment bar.8 CMS may consider each act of noncompliance when determining the length of the reenrollment bar. Failing to provide a medical record listed in a medical records request is considered an act of noncompliance. Each act of noncompliance can result in revocation of a provider’s enrollment status for no more than one year.
As a means of handling requests, providers should discuss this responsibility with their employer and consider including provisions about access to medical records (particularly Medicare medical records) in their employment contracts to ensure that they will have access in the event of records requests. CMS encourages providers to discuss such provisions with their legal counsel. Practitioners who work for health facilities including hospitals and clinics should make sure the facility is willing to work with them in complying with records requests. CMS does not recognize a facility’s refusal to provide access to records as a reasonable excuse for failing to comply with a request to review records.9
Psychotherapy Documentation and Records Retention Resources
Coding, Billing, and Claims Before billing Medicare, providers must decide how to bill the system. Most initial claims for reimbursement must be submitted electronically. However, there are some exceptions to this rule. Solo and small providers (those with fewer than 10 full-time equivalent employees) may submit claims using paper forms. CMS allows institutions with fewer than 25 full-time-equivalent employees to submit the CMS-1450 (paper) claim form.10
Providers who are required to bill electronically must decide whether to bill Medicare directly or submit claims through a third-party vendor. When a provider directly bills Medicare, they self-submit claims to the Electronic Data Interchange (EDI) system. Medicare’s Remit Easy Print Quick Start Guide and free software for submitting claims called PC-ACE assist providers with the directbilling process (https://www.edissweb.com/ docs/shared/mrep_qsg.pdf).
CMS has a list of approved vendors for providers who choose to submit claims through a third-party vendor (https://www. edissweb.com/cgp/vendors/).11
Claims Submission The Medicare Claims Processing Manual (https://www.cms.gov/regulations-andguidance/ guidance/manuals/internetonly- manuals-ioms-items/cms018912) has claims submission instructions that include information about the use of modifiers. Chapter 1 describes general billing requirements for health care providers and suppliers. Chapter 12 includes claims processing instructions for physicians and non-physician practitioners. Chapter 24 explains electronic filing requirements and the EDI form required before submitting electronic claims. Chapter 26 explains what each 837P or CMS-1500 claim must include. The Medicare Benefit Policy Manual (https://www.cms.gov/regulationsand- guidance/guidance/manuals/internet-onlymanuals- ioms-items/cms012673) provides information about submitting claims, as well.
Where to Submit Claims Claims for patients enrolled in Medicare fee-for-service (FFS) should be submitted to the provider’s MAC.12 Claims associated with patients enrolled in a Medicare Advantage (MA) plan should be submitted to the patient’s MA plan.
Timely Filing Providers must file Medicare claims with their MAC no later than 12 months, or one calendar year, after the service date. CMS/ MACs will deny claims that arrive after the deadline. When CMS denies a claim for timely filing, the action is not the same as an initial determination. This means that if the provider does not file the claim in time, they cannot appeal for payment.
Medicare Secondary Payer As previously discussed, prior to billing Medicare, providers should have checked their patients’ eligibility information to determine whether Medicare is a primary or secondary payer. When there is more than one payer, Medicare’s “Coordination of Benefits” rules determine who pays first. Providers cannot bill Medicare first when a patient has primary coverage other than Medicare (e.g., a group health plan or retiree coverage). The primary payer pays first, up to the limits of coverage. A secondary payer only pays if there are costs the primary insurer did not cover. There are some exceptions to these general rules: Medicare will pay when patients who have other primary coverage have not met their deductible, when the primary insurer does not cover the services, and when the patient has exhausted the benefits they have under their primary. The Medicare Secondary Payer (MSP) program ensures that Medicare is aware of situations where it should not be the primary payer of claims. The Benefits Coordination Recovery Center (BCRC) performs activities related to the collection, management, and reporting of other insurance coverage for beneficiaries. The BCRC does not process claims or claimspecific inquiries. The MACs, intermediaries, and carriers are responsible for processing claims submitted for primary or secondary payment.13 What Happens After Claims Are Submitted After providers submit claims to their MAC, the claims go through an editing process. MACs conduct initial edits, also called frontend edits, to determine if the claim meets basic requirements. If the system detects errors, the MAC will reject the batch of claims to be corrected and resubmitted. If a claim passes the initial edits, the MAC edits the claim against HIPAA implementation guide requirements. If the system detects errors at this stage, the MAC rejects individual claims to be corrected and resubmitted. This part of the submission process can take up to three days. Providers should not resubmit a claim while it’s initially being reviewed because that creates a duplicate claim. Once a claim moves beyond the first two levels of edits, the MAC accepts the claim and assigns a unique tracking number called an Internal Control Number (ICN). After the MAC has processed a claim, the MAC will send an electronic payment along with a notice of payment and adjustment known as Remittance Advice (RA).
Coding, Billing, and Claims Resources
Conclusion To maintain their approved provider status, Medicare providers must be vigilant about knowing the laws and policies that guide their work within the Medicare FFS system. CMS and the MACs have a multitude of resources to assist providers in this effort. CAMFT will continue to monitor and offer information about compliance issues.
Sara Jasper, JD, CAE, is a staff attorney for CAMFT. Sara is available to answer member calls regarding legal, ethical, and licensure issues.
Endnotes
1 Eligible Medicare providers are those who meet all the statutory and regulatory requirements for providing services to Medicare beneficiaries. These requirements can be found in the 2023 Consolidated Appropriations Act and the Calendar Year 2024 Medicare Physician Fee Schedule Final Rule.
2 Providers interested in seeing Medicare patients through Medicare Advantage or Medicare Managed Care plan networks should reach out to the MA plans to have their questions answered.
3 CMS allows stamped signatures if a provider has a physical disability and can prove to a CMS contractor that they are unable to sign.
4 The term “late” does not include delays that occur as the result of a transcription process.
5 Federal regulation requires Medicare Advantage (MA) plans or Medicare Managed Care plans to maintain records for 10 years (42 C.F.R. 422.504 (d) and (e)).
6 42 C.F.R. §424.516(f).
7 42 C.F.R. §424.535(a)(10).
8 42 C.F.R. §424.535(c).
9 Medicare Learning Network Fact Sheet: https://www.cms.gov/ files/document/mln4840534-medical-record-maintenance-andaccess- requirements.pdf.
10 Social Security Act §1861(u).
11 Note: These vendors may charge for their services.
12 Providers cannot charge patients for completing or filing claims; those who do are subject to penalties.
13 Providers can contact the Benefits Coordination Recovery Center (BCRC) to obtain conditional payment amounts and final recovery claim amounts, or to ask questions about Medicare repayments and recovery demand letters. The BCRC’s customer service number is 1-855-798-2627.
This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.