Yesterday (July 7), the Centers for Medicare & Medicaid Services (CMS) issued the Calendar Year 2023 Physician Fee Schedule (PFS) proposed rule. The rule contains several proposals intended to expand access to behavioral health services, including a proposal to allow marriage and family therapists (MFTs) and licensed professional counselors (LPCs) to provide behavioral health services while being under general supervision rather than direct supervision.
Please see below for a summary of the proposal and well as an explanation of how Medicare would pay for services rendered by MFTs and LPCs under the proposal.
Summary of Proposal: Under the proposed rule, CMS proposes to amend 42 CFR § 410.26, the rule governing “incident to” payments, to add the following language specifically addressing behavioral health services:
“Behavioral health services can be furnished under general supervision of the physician (or other practitioner) when these services or supplies are provided by auxiliary personnel incident to the services of a physician (or other practitioner). The physician (or other practitioner) supervising the auxiliary personnel need not be the same physician (or other practitioner) who is treating the patient more broadly. However, only the supervising physician (or other practitioner) may bill Medicare for incident to services supervision requirement under our “incident to” regulation at § 410.26 to allow behavioral health services to be furnished under the general supervision of a physician or NPP when these services or supplies are provided by auxiliary personnel incident to the services of a physician or NPP [non-physician practitioner].”
Currently, Medicare reimburses for services provided by MFTs or LPCs under the physician's or NPP’s name if those services occur directly as a result of the treatment of a physician or NPP and that physician or NPP is on-site. By creating an exception to the supervision requirement, the proposed rule would allow MFTs and LPCs to provide “incident to” services without a physician or NPP on-site, thus expanding access to behavioral health services rendered by MFTs and LPCs for Medicare beneficiaries.
Payment for MFTs and LPCs under Proposal: Under current law, Medicare pays eligible participating providers (physicians, physician-directed clinics and, in some cases nonphysician practitioners) for services rendered by their employees (including leased employees and independent contractors) when all “incident to” criteria are met. Coverage is available for the services of nonphysician personnel as nurses, technicians and therapists when furnished “incident to” the professional services of a physician/nonphysician practitioner.
“Incident to” services are generally reimbursed at 85% of the Medicare Physician Fee Schedule (MPFS) rate for the covered clinician where the covered clinician is supervising the employee or independent contractor. The supervising clinician need not be on-site, however.
There are some limitations. For example, the physician/nonphysician practitioner cannot hire and supervise a professional whose scope of practice is outside the provider's own scope of practice as authorized under State law or whose professional qualifications exceed those of the "supervising" provider. For example, a Certified Nurse-Midwife’s (CNM), a registered nurse with additional training as a midwife, may not hire a psychologist and bill for that psychologist's services under the “incident to” provision, since a psychologist's services are not integral to a CNM personal professional services and are not regularly included in the CNM's bill. Noridian, one of CMS’s contractors administering Part B reimbursements, provides a fuller explanation here.
In the proposed rule, CMS acknowledges it “does not have authority to create a statutory benefit category for [MFTs and LPCs],” but states the agency considered regulatory revisions to “reduce existing barriers and make greater use of the services provided by LPCs and LMFTs” due to the current need among Medicare beneficiaries for improved access to behavioral health services and the existing workforce shortages impeding access to needed treatment for behavioral health. In explaining the motivation behind the inclusion of the proposal in the proposed rule, CMS cites data from ACA on the availability of LPCs (see page 234 of rule, linked here).
The proposal to allow MFTs and LPCs to provide “incident to” behavioral health services while being under general supervision rather than direct supervision is the provision with the most direct impact on ACA’s members. However, there are several other provisions included in the proposed rule to expand the role of LPCs in the Medicare program.
The American Counseling Association is thankful for the support from CMS. Our next step is to draft comments in support of the proposal. In the near future we will provide instructions to our members on how to submit comments in support of moving this rule from proposed to final.