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When Opting Out Isn’t an Option

Friday, December 5, 2014   (0 Comments)
Posted by: Sheri Ryan
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When Opting Out Isn’t an Option

By Kathy Mills Chang, MCS-P

Not long ago, we heard from a panicked DC who had just received a call from Medicare. EEEK!! They asked him why they began receiving itemized statements from his patients, when they couldn’t find him registered in the system. He told them that his particular style of chiropractic was not classified as a Chiropractic Manipulative Treatment (CMT), as he was more of a sports chiropractor. He felt that he had “opted out” of Medicare. His logic: most of the patients in his practice were a younger, more active clientele of athletes and active adults, and he had very few Medicare patients. So mostly, he felt he wasn’t really providing Medicare covered services. Evidently, these patients thought he was.

The key word here would be “mostly.” By the time we got the email, this poor guy was in a panic—and for good reason. Chiropractors can choose to be participating (par) or be non-participating (non-par) providers of Medicare, but opting out isn’t an option. He had been treating Medicare-qualified patients who thought they were seeing a typical chiropractor who was enrolled in the Medicare system. Now they were trying to get reimbursed by either Medicare or their secondary insurance on their own.

The result? The chiropractor in question was getting letters and calls from Medicare telling him that he wasn’t using the proper modifiers, and the secondary insurances were demanding an “opt-out letter”—something he wasn’t even legally allowed to do. He was confused and distraught. And we? We were just plain worried. Because by the time Medicare is sending you nasty grams sniffing for more info and wondering why in the world your patients are sending in their bills, you’re not just in hot water, you’re gasping for air.

A discouragingly large percentage of DCs still believe they can “opt out” of Medicare and demand cash from Medicare patients. Not acceptable—and not legal. Even if you are a “non-par” provider, you still must be equipped to be able to bill Medicare on behalf of the patient if they ask you to. This is as true of statutorily non-covered services as it is of covered chiropractic manipulation. The rules are simple: DCs must bill Medicare directly for all covered services, and for the statutorily excluded services if the patients ask them to, such as for denial in order to submit to a secondary insurance.

Why? Because if a patient were to receive an excluded service—say, an exam--their secondary carrier might pay if Medicare denied the claim. But if your practice doesn’t have the proper Medicare number, then you can’t submit the claim to them in the first place. Medicare can’t deny the claim, because they will never see the claim. And thus there’s no way to send the claim on to a secondary payer.

Similarly, DCs often believe that if they get an Advanced Beneficiary Notice (ABN) signed by the patient, everyone is in the clear. But here again, if a chiropractic practice doesn’t have a Medicare number, it’s not entitled to even use the ABN form; the practice is not in Medicare.

Here’s the straight scoop from the American Chiropractic Association (ACA): DCs can absolutely choose not to accept Medicare patients, or they can choose to limit the number of Medicare patients they accept into their practice. But if they do choose to see and treat a Medicare beneficiary, as our friend did, they must be enrolled as a non-par provider and must submit claims to Medicare on behalf of the patient. Violations of this requirement can bring about penalties of up to $2000 for each infraction. It isn’t pretty.

Last September’s changes for HIPAA Omnibus gave patients unprecedented rights and control over their protected health information (PHI). So if you’re a chiropractor who doesn’t have a Medicare number and a patient walks in and wants to be treated with the understanding that the office can’t bill Medicare, there’s only one way around this. The patient must voluntarily restrict their protected health information by exercising their rights under HIPAA and agree that they understand--in writing--that neither doctor nor patient will be able to submit bills to Medicare. Warning: under these new HIPAA rules, you must follow the patient’s direction NOT to share information with Medicare, proper Medicare number or not.

Where our friend got into trouble is that, in his mind, he absolutely believed that he was not providing a coverable service—i.e., a chiropractic manipulative treatment—but instead something closer to joint mobilization, which he was coding as 97140. The catch here is that if that were indeed true, then by law—since he by his own admission isn’t providing a coverable service under Medicare—he would have to turn patients away and set up a front desk script that explains why. Alternatively he could get a number and submit to Medicare if asked.  

Except for simply waving goodbye, the front office staff would then have no choice but to offer to refer to another DC who provides a coverable service, participates with Medicare, and can bill on the patient’s behalf. Again, the only way this patient could stay with the original practice is by using their new HIPAA rights and agreeing to restrict the practice’s ability to bill Medicare or any other carrier. Further, they would have to agree that even though they will get a receipt, they may not send it to Medicare on their own.

There’s plenty of room for trouble here. The most obvious is that even with great front office scripting and patient education in place—which clearly wasn’t the case here—DCs ultimately have no control over what patients do. You can sit them down and script and straight-talk until you’re blue in the face, but those patients could easily—as this DC’s patients did—go ahead and submit claims to Medicare all the same.

There’s a better way. If you plan to see Medicare patients at all, just get a registered Medicare number. When a Medicare patient receives active treatment, submit the bill and have proper documentation. If the patient receives only statutorily non-covered treatment, such as manual therapy or evaluation and management service, then get payment for those services in cash. If you do provide a covered CMT, submit the bill. If you provide maintenance care, get an Advance Beneficiary Notice (ABN) signed and collect cash for the adjustment. Warning: make sure you submit at least one bill to Medicare each year, or you will be placed on inactive status—and land yourself in the same hot water without an active Medicare number.

The very worst thing you can do is ignore the rules, see Medicare patients randomly, and ask them to pay cash outside the system. We’re not fans of those practices who try to operate outside the rules, and here’s why:  even if the patient says that they want to pay cash, inevitably at some point they or their family members or their accountant will wonder why the bills haven't been submitted. We have never seen this end well.

Don’t want to see Medicare patients? Don’t see them. But, we beg you, get a registered number as a non-par provider. You just might save yourself tens of thousands of dollars—and a whole lot of heartache.

Kathy Mills Chang is a Certified Medical Compliance Specialist (MCS-P) and since 1983, has been providing chiropractors with reimbursement and compliance training, advice and tools to improve the financial performance of their practices. Kathy leads a team of certified specialists at KMC University, and is known as one of our profession’s foremost experts on Medicare, reimbursement and compliance.  Kathy or any of her team can be reached at (855) TEAMKMC or

reprinted with permission.  

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