Subject: ACA SPECIAL ALERT: Incident To Regulations

Dear Demo State Association and CCAC Representatives,

ACA representatives met with representatives from the Center for Medicare and Medicaid Services (CMS) this morning regarding the incident to requirements. It was confirmed that due to the pending litigation against CMS by National Association of Athletic Trainers (http://www.nata.org/), all "incident to" requirements on DCs in the demo areas have been temporarily rescinded retroactive to April 1, the beginning of the demo. While we expect more information from CMS on how to file corrected claim forms in the near future, we wanted to make sure that the profession was aware of this vital information as soon as possible. It means that DCs participating in the demo are allowed to have their CAs perform "incident to" therapy services at this time. The ACA continues to raise its objection to the overall application of the incident to regulation to the demonstration project.

We have received advance copy of the CMS Q&A addressing this issue which will be posted on the CMS site (http://www.cms.hhs.gov/researchers/demos/eccs/default.asp) this upcoming Monday:

“Q: Can trained office staff who are not chiropractors, such as chiropractic assistants, provide therapy services “incident to” the chiropractor?

A: Due to pending litigation, CMS has agreed to delay implementation of the regulation and manual provisions governing qualifications for auxiliary personnel furnishing services billed as physical therapy and occupational therapy services incident to the services of a physician or nonphysician practitioner. We anticipate this delay to be temporary, probably less than two months. By its terms, CMS's agreement to delay implementation will expire on July 22, 2005, unless the court enters an injunction order prohibiting implementation of the qualification provisions described above. If the court rules in favor of CMS before July 22, 2005, CMS will issue instructions requiring implementation of the provisions of the regulation and manual. In light of CMS's agreement to delay implementing new Chapter 15 manual provisions and certain provisions of the regulations regarding “incident to” therapy services, chiropractic assistants, physical therapy assistants, or other trained office staff may provide therapy services incident to a chiropractor as of the beginning of the demonstration, April 1, 2005. Please note that the court has ordered that any hearing on the issue, if necessary, will take place on July 1, 2005. The incident to requirements for this demonstration will then mirror the court’s ruling regarding implementation of these manual provisions. If the court allows the CMS manual provisions to take effect, then chiropractors under the demonstration will also be subject to these requirements as of the effective date. This means that when a physical therapy service is provided “incident to” the service of a chiropractor, the person who furnishes the service must be a physical therapy qualified practitioner other than licensure (meeting the physical therapy definition at 42 CFR 484.4 other than licensure).”

The ACA will continue to update you as information becomes available. If you have any questions, please feel free to visit our demo website at www.acatoday.com/demo or call the ACA at 800-986-4636.

Please be advised that this information will be sent out to the ACA Demo eAlert subscribers; feel free to forward it to your membership, etc. Please encourage your members to sign up for the eAlert so that they will receive this information in the future; they can sign up on http://www.acatoday.com/demo.

Let me know if you have any questions at all,
Thank you very much,
-Jaime Mulligan

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Jaime Mulligan
Legal Assistant
1-800-986-4636 ext. 246
jmulligan@amerchiro.org
fax: (703)243-2593
Visit our website for complete details www.acatoday.com