What Constitutes Fraud When Billing 'Incident to'?

Carolyn Buppert, NP, JD


January 03, 2011


Is it fraudulent to raise revenue by billing "incident to?" Our compliance officer mandates that charges for any service -- urine dip, glucose finger stick, patient seen by NP -- be signed by a physician only.

Response from Carolyn Buppert, NP, JD
Attorney, Law Office of Carolyn Buppert, PC, Bethesda, Maryland

It isn't fraudulent to bill "incident to," if the practice follows the rules.

Fraud is "the intentional deception or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to himself or some other person."[1]

If one follows the rules on billing "incident to," there is no misrepresentation. Under the "incident to" rules, a practice or clinic may bill a nurse practitioner's (NP's) services under a physician's name, if:

  • Physician services were performed by a NP in the office;

  • The physician or the physician's group employed the NP or had an independent contract with the NP;

  • The physician performed the initial service;

  • The physician was in the suite at the time the NP performed the service; and

  • The physician remains involved in the care of the patient.

The rules on "incident to" are in the Medicare Benefit Policy Manual.[2]

When a practice bills an NP's service "incident to," the practice receives 100% of the Physician Fee Schedule rate rather than 85%, which is the rate Medicare pays when services are billed under an NP's name. The "incident to" rules are for Medicare. Other payers may or may not follow Medicare's "incident to" rules.

It would be inappropriate, and most likely a misrepresentation, to bill everything under a physician's provider number, knowing that the rules aren't always being followed. For example, if the clinic is a 1-physician operation and the physician is not always in the office, then all charges cannot be billed "incident to." If the physician goes out to lunch or to the hospital across the street, or is on vacation, there would be no lawful opportunity to bill "incident to," because the physician is out of the office suite. Also, it would be a misrepresentation to make the NP invisible on the claim form. Under Medicare rules, if an NP performs an evaluation/management service for a patient, and the plan is to bill the service "incident to" a physician's service, the claim should be submitted with the rendering provider's (the NP's) NPI number in item 24J and the supervising physician's name in items 17 and 31. It would be a misrepresentation to put the physician's NPI in item 24J as rendering provider.[3]

If a practice were audited and the Medicare auditors found that a claim had been submitted showing a physician as rendering provider or physician as supervising physician, and the progress note was written and signed by an NP, and the appointment book doesn't show the physician as being present on the day of service, Medicare is most likely going to deny payment for the service. If Medicare finds enough of such instances of erroneous billing, then the practice could be subject to a charge of fraud.


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