This article focuses on the proposed change that would relax oversight requirements for services provided incident to physician services, which may allow for an expansion of the clinical team that can provide Medicare-billed behavioral health services. Here’s a summary of what this part of the Proposed Rule means and the impact it could have.
As we continue to live through the COVID-19 PHE, demand for behavioral health services remains high and growing, according to 2020 and 2021 surveys conducted by the American Psychological Association. However, the provision of behavioral health services is limited, due to overwhelming workforce shortages expected to affect many behavioral health providers by 2025, including psychiatrists, psychologists, mental health and substance abuse social workers, school counselors, and marriage and family therapists. as reported in HRSA’s National Center for Health Workforce Analysis. Existing restrictions on the supervision of these services further limit the use of some behavioral health providers. CMS aims to address these concerns in the proposed rule with a modification to the current oversight requirements.
The Medicare statute does not have a benefit category for services provided by licensed professional counselors (LPCs) or licensed marriage and family therapists (LMFTs). In contrast, LPC and LMFT services are billed indirectly when providers perform their services as “support staff.” According to current CMS regulations, ancillary staff are individuals who provide behavioral health services incident to physician services, who must act under the “direct supervision” of a physician (or other professional). See 42 CFR § 410.26(a). Direct supervision is defined as the supervising physician must be present in the office where services are provided (Note: This may include virtual presence through audio/visual technology during PHE). I see 42 CFR § 410.32(b)(3)(ii). This means that ancillary staff are limited to providing services when a supervising physician is also available.
The proposed rule offers more flexibility for ancillary staff by allowing these individuals to work under the “general supervision” of the billing physician. This would mean that the physician has “overall direction and control,” but the physician’s presence would not be required in the office during treatment. 42 CFR § 410.32(b)(3)(i). Thus, beneficiaries who need behavioral services such as counseling or cognitive behavioral therapy will have easier access to more providers in a variety of settings. CMS specifically noted in its notices that this proposal intends to allow greater use of behavioral health providers such as “marriage and family therapists, licensed professional counselors, addiction counselors, certified peer rehabilitation specialists, and others” to help address growing behavioral beneficiaries’ health needs.
CMS specifically noted in the Proposed Rule that ancillary staff should meet all other requirements to provide services, including obtaining State licensure, thereby ensuring that beneficiaries are treated by qualified individuals.
The impact for behavioral health providers
If this Proposed Rule becomes final, increasing access to physician-staffed behavioral health providers will mean additional resources for behavioral health clinical teams, but this ability to reach more patients will also increase the need for coordination of care among providers. The proposed rule does not indicate that physicians can step back from their supervisory role in patient care. While physicians do not need to be in the room or building where services are provided, they must be aware of their patient care. Physicians should review service notes from the provider after a visit, and there should be an open flow of communication between the provider and the supervising physician to address any issues as soon as possible.
Ensuring strong communication between providers will be critical to maintaining quality of care, and many behavioral health units may need to evaluate their current systems to ensure that providers are able to coordinate appropriately. While the majority of the healthcare industry has moved or is moving toward electronic record keeping systems, a June 2022 report from the Medicaid and CHIP Payment and Access Committee (MACPAC) states that only 6% of behavioral health facilities use electronic records health (EHR). Thus, most behavioral health providers still rely on telephone, paper, or fax to share patient information with other providers, which could cause barriers to service integration. Behavioral health facilities should consider implementing electronic systems that allow smooth and secure transmission of data between multiple providers.
Effective coordination, as well as diligent record keeping, is critical to providing quality services and ensuring that providers are properly paid for services rendered. Specifically, the Proposed Rule changes the way physicians supervise ancillary staff, but does not expand on the duties that physicians can delegate to ancillary staff, and the physician is still responsible for billing for services provided under their supervision. . While the proposed rule allows more providers to participate in behavioral health treatment, the group of providers must be in sync about what services are best for the patient, how records are kept, and how services are billed.
Public comments on the Proposed Rules may be submitted online or by mail and are due no later than 5 p.m. Eastern Time on September 6, 2022.