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Incident To Billing Rules From CFR § 410.26

§ 410.26 Services and supplies incident to a physician’s professional services:
(a) Definitions. For purposes of this section, the following definitions apply:
(1) Auxiliary personnel means any individual who is acting under the supervision of a physician (or other practitioner), regardless of whether the individual is an employee, leased employee, or independent contractor of the physician (or other practitioner) or of the same entity that employs or contracts with the physician (or other practitioner).
(2) Direct supervision means the level of supervision by the physician (or other practitioner) of auxiliary personnel as defined in § 410.32(b)(3)(ii).
(3) Independent contractor means an individual (or an entity that has hired such an individual) who performs parttime or full-time work for which the individual (or the entity that has hired such an individual) receives an IRS–1099 form.
(4) Leased employment means an employment relationship that is recognized by applicable State law and that is established by two employers by a contract such that one employer hires the services of an employee of the other employer.
(5) Noninstitutional setting means all settings other than a hospital or skilled nursing facility.
(6) Practitioner means a non-physician practitioner who is authorized by the Act to receive payment for services incident to his or her own services.
(7) Services and supplies means any services or supplies (including drugs or biologicals that are not usually self-administered) that are included in section 1861(s)(2)(A) of the Act and are not specifically listed in the Act as a separate benefit included in the Medicare program.
(b) Medicare Part B pays for services and supplies incident to the service of a physician (or other practitioner).
(1) Services and supplies must be furnished in a noninstitutional setting to noninstitutional patients.
(2) Services and supplies must be an integral, though incidental, part of the service of a physician (or other practitioner) in the course of diagnosis or treatment of an injury or illness.
(3) Services and supplies must be commonly furnished without charge or included in the bill of a physician (or other practitioner).
(4) Services and supplies must be of a type that are commonly furnished in the office or clinic of a physician (or other practitioner).
(5) Services and supplies must be furnished under the direct supervision of the physician (or other practitioner).
The physician (or other practitioner) directly supervising the auxiliary personnel need not be the same physician (or other practitioner) upon whose professional service the incident to service is based.
(6) Services and supplies must be furnished by the physician, practitioner with an incident to benefit, or auxiliary personnel.
(7) A physician (or other practitioner) may be an employee or an independent contractor.
(c) Limitations. (1) Drugs and biologicals are also subject to the limitations specified in § 410.29.
(2) Physical therapy, occupational therapy and speech-language pathology services provided incident to a physician’s professional services are subject to the provisions established in §§ 410.59(a)(3)(iii),  0.60(a)(3)(iii), and 410.62(a)(3)(ii).

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John H. Fisher

Health Care Counsel
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