Although occupational therapy practitioners may prefer to run a 100% cash-based clinic and see Medicare beneficiaries, this is largely not possible. Occupational therapy practitioners cannot opt out of Medicare. Although some services are never covered under Medicare, those tend to be the majority, as most consult an OT after an incident or injury occurred. So, let’s dive into what it means to opt out of Medicare and what types of services occupational therapy practitioners can bill cash.
1. Occupational Therapy Practitioners Can’t Opt Out of Medicare
As current Medicare regulation stands, occupational therapy practitioners cannot opt out of Medicare. This means that OT practitioners must submit claims to Medicare for covered services. This also applies to physical therapy and speech therapy practitioners.
The only exceptions to this rule are physicians who can “opt out” or Medicare under section 1802(b) of the Social Security Act.
2. Changing Medicare Regs to Allow OTs to Opt Out Requires an Act of Congress
Why changing the regs would be so challenging:
While the solution seems simple, it is quite complex. The Social Security Act (SSA) defines much of Medicare’s regulations. The SSA defines explicitly what type of professionals can opt out of Medicare in section 1802(b) of the Social Security Act.
The way occupational therapy practitioners are categorized under the Social Security Act does not allow occupational therapy practitioners to “opt out” of billing Medicare. Therefore, to allow OTs to opt out of Medicare, it would require an act of Congress to change the OTs to the “physician” or “practitioner” category. This is not an easy task. For example, it has taken 30+ years to pass a 2-page bill allowing OTs to initiate and complete the comprehensive assessment in home health. So, one can only imagine how complicated it would be to pass legislation recategorizing therapy practitioners under the SSA.
OT Billing Guide
Changing the way OTs are categorized could drastically change all aspects of practice
For further perspective, the type of regulatory change suggested would have rippling effects on the rest of the profession. It is challenging to predict what type of consequences and burdens a reclassification would bring. Although Medicare presents a challenge for practitioners who would prefer to run a cash-based program, thousands of practitioners consistently bill Medicare.
We must consider the majority of the profession who bill Medicare through their clinic, hospitals, SNFs, ALFs, LTACs, etc. We do not know what type of change recategorization would have on the profession at large, and this must be considered when discussing such a sizeable regulatory change. Additionally, we must consider that physicians have other regulatory burdens that we may not want to deal with.
3. So, I have to submit a claim if it is covered by Medicare. What is a covered service?
A key phrase to remember when determining if a service is covered under Medicare is to ask if a service is “reasonable and necessary.” Chapter 15 of the Medicare Benefit Policy Manual clearly explains covered service criteria under Medicare Part B.
Occupational therapy practitioners must submit a claim if the service is covered under Medicare. Clinicians must use clinical judgment to determine if a service is covered or not for each client. The same service may be covered for some individuals and not others. OT practitioners can only collect out-of-pocket payments from Medicare beneficiaries if the services are never covered under Medicare. So, let’s talk about that next.
4. What Medicare Doesn’t Cover
There are a variety of services that Medicare never covers for occupational therapy providers. The list below is not comprehensive but provides a general idea.
- Wellness Services
- Preventative Services
- Home modifications (the evaluation/assessment may be covered, however)
- Most DME and equipment such as grab bars, toilet risers, etc.
- Non-skilled services
To make matters more complicated, there are some exceptions where the provider can collect out-of-pocket payments for covered services. This is when the services are not considered “medically reasonable and necessary.” How does one decide if it is medically reasonable and necessary? By using their clinical reasoning. However, if in doubt, utilizing the ABN is important to cover all bases.
Of course, there are plenty of situations where a clinician would not need to bill Medicare if the services are not medically necessary, a skilled service is not being provided, or the service would never be covered under Medicare. AOTA has released a specific guideline for home modifications this past year. Many practitioners run profitable clinics that bill Medicare in addition to private payers. Part of the challenge with running any company is considering the “case-mix,” meaning how many patients of each payer source you need to remain profitable.
The Advanced Beneficiary Notice (ABN) is a necessity, not an option
If a service is not medically reasonable or necessary but would be typically covered by Medicare, the provider would need to have a patient sign an Advanced Beneficiary Notice (ABN) before providing any services. AOTA provided a comprehensive guide on the ABN that should facilitate this decision-making process.
Therapists are required to issue the ABN to original (fee-for-service) Medicare beneficiaries
before providing therapy that is not covered under Medicare. The purpose of the ABN is to prevent surprise bills if Medicare rejects a claim and reduce the risk of Medicare beneficiaries being taken advantage of by bad actors. The ABN must be issued, explained, and signed before providing services that Medicare won’t cover. You cannot retroactively sign an ABN.
5. So, Who Can Opt Out of Medicare?
Medicare provides a list of providers who are eligible to opt out of Medicare. This list primarily consists of physicians, clinical social workers, and nurse anesthetists. Providers who are not eligible to opt out of Medicare include physical therapists, speech-language pathologists, occupational therapists, and chiropractors.
This is the Medicare guidance on who can opt out of Medicare:
40.4 – Definition of Physician/Practitioner (Rev. 62, Issued: 12-22-06, Effective: 11-13-06, Implementation: 04-02-07) For purposes of this provision, the term “physician” is limited to doctors of medicine; doctors of osteopathy; doctors of dental surgery or of dental medicine; doctors of podiatric medicine; and doctors of optometry who are legally authorized to practice dentistry, podiatry, optometry, medicine, or surgery by the State in which such function or action is performed; no other physicians may opt-out.
Also, for purposes of this provision, the term “practitioner” means any of the following to the extent that they are legally authorized to practice by the State and otherwise meet Medicare requirements:
• Physician assistant;
• Nurse practitioner;
• Clinical nurse specialist;
• Certified registered nurse anesthetist;
• Certified nurse midwife;
• Clinical psychologist;
• Clinical social worker;
• Registered dietitian; or
• Nutrition Professional
The opt-out law does not define “physician” to include chiropractors; therefore, they may not opt-out of Medicare and provide services under private contract. Physical therapists in independent practice and occupational therapists in independent practice cannot opt-out because they are not within the opt-out law’s definition of either a “physician” or “practitioner”
Medicare Exists to Protect Patients
In conclusion, although there are challenges with billing Medicare, there are challenges in running any business. Some business models work better with certain payer sources than others. At the end of the day, Medicare exists to protect its beneficiaries, and Congress will consider this of great importance. As with all other payment and regulatory changes in the past few years, we must self-reflect about how we practice and the type and quality of therapy we provide.
- Medicare Resources for Private Practce Essentials
- Private Practice Essentials for Reimbursement
- Am I Required to Bill Medicare? Understanding the Medicare Advanced Beneficiary Notice
- Home Modifications and Occupational Therapy
- AOTA’s Home Modifications Page
- Navigating Home Modifications Billing for Medicare-Covered Clients
- Medicare ABN Noncoverage FAQ