EMS Lawline: Treatment in Place: What You Must Know Before You Bill

Headshots of Christopher Kelly, on the left, and Dan Pedersen, on the right.
From left, Christopher Kelly and Dan Pedersen

Chances are you already heard the good news that through a special waiver program, the Centers for Medicare & Medicaid Services (CMS) has authorized Medicare payment to ambulance services, both retroactively and prospectively, for treating some patients who were treated but not transported during the public health emergency (PHE). This is indeed a milestone in the progress that EMS is making in becoming recognized as providers of community healthcare, not just suppliers of patient transportation. This deviates from the longstanding Medicare policy that ambulance is a “transportation only” benefit. Before you get too excited, and more importantly, before you begin billing these claims to Medicare, there are a few things you should know, as this new program is very limited and does not provide blanket authority to bill Medicare for all patients who were treated but not transported.

Two Main Conditions to Bill Medicare for Treatment in Place

CMS has made it clear that there are two conditions that must be met before you can qualify for this so-called treatment in place (TIP) waiver. First, the ground ambulance service must be sent in response to a 911 call (or the equivalent in areas without a 911 call system). While the waiver does not further define this requirement, it is the same language used in the emergency response rule, which CMS has clarified to include calls that come in through a normal phone number or radio, even in areas with a 911 system, so long as the dispatch is still consistent with local emergency response protocols. We believe this definition is what CMS intended with the waiver language, but it is hard to understand why they could not have stated it that way if that was truly their intent. A clarification on this point would clear up any ambiguity, and hopefully CMS will do that in the near future.

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The second condition is that the patient would have been transported to a covered destination “but-for” a community-wide EMS non-transport protocol that was put in place due to the COVID-19 public health emergency and effective for dates of service on or after March 1, 2020. In other words, there must be a protocol that says essentially that the patient should not be transported to the hospital.

Other Hurdles to Jump Over

While those are the two primary issues noted by CMS, there are other issues that underlie both these conditions you should also consider. The highest hurdle of these is the transport must not merely be one that would have occurred, but for the protocol, it also must be one that Medicare would have paid for; meaning that a transport (had one occurred) by ambulance would have been medically necessary. We call this the highest hurdle for a reason: many of the patients that meet a treatment-in-place protocol would likely have low-acuity conditions that would make transport by ambulance questionable (at best) when it comes to medical necessity. In fact, we are currently seeing some MACs take aggressive action in denying emergency ambulance transports for lack of medical necessity, when in the past the focus of denials for medical necessity has been for non-emergent transports. So, EMS agencies must be very aware of this risk and potential for audit before you submit TIP claims.

‘Community-Wide’ COVID-19 Protocol Required

There are numerous other ancillary issues related to the protocol requirement.

1) This protocol must be community-wide in nature and application (i.e., applicable to groups, and not done on a case-by-case, patient-by-patient kind of arrangement).

2) In the event of an audit, you must be able to produce this written protocol – so make sure you have a copy in your files.

3) The protocol must be COVID-19 specific – the patient would have been transported, but the transport did not happen because of the protocol due to the COVID-19 PHE (so you must carefully read the language of any protocol you believe supports your TIP claim).

4) The protocol must also have been in effect on the date of service, so while the application of the waiver is retroactive to March 1, 2020, your protocols cannot be retroactive.

5) The protocol must be the basis for non-transport, which means those patients for whom you recommended transport, but, against your advice, refused ambulance transport because of COVID concerns, will not meet the requirements for payment under TIP. So, it is critical to consider patient “refusals” and exactly what the patient is refusing.

Many Treatment in Place Situations Will Likely Not Be Eligible

Because of all these caveats, there are a lot of scenarios where you may have provided “Treatment but No Transport” (often dubbed “TNT”) in the past 18 months that do not qualify for payment under the TIP waiver. Remember, the TIP waiver program to allow for Medicare payment is different from the ET3 program and will not apply to all “TNT” scenarios – in reality, it may end up being applicable in very few cases. There are specific requirements and conditions that must be met (as enumerated above) to be eligible for TIP reimbursement.

Once you determine that you have provided a service that jumps through all the TIP hoops, the service is billable to Medicare if it meets all the coverage criteria. To do so, use a covered modifier combination of where the patient was and where they would have gone (“RH” for example, for “residence” to “hospital”) and add the secondary “CR” modifier, for “catastrophe/disaster related”. It is important to note that there is no rush to get those claims out the door. CMS has expanded the time-to-file window to one year from May 5, 2021 (the date of the implementation of the waiver) for the retroactive dates of service (i.e., as early as March 1, 2020).

Keep in mind that this special waiver only applies to Medicare patients. Some commercial payers had already begun to pay for treatment in place situations where there was no ambulance transport to a hospital – recognizing the cost savings when a patient can be managed without expensive hospital care. Also, if the patient does not qualify for Medicare patient under this limited waiver, the treatment in place would not be a Medicare covered service, and thus the patient could be billed directly for that service. But, beware. If it is a Medicare covered service, and you did bill the patient (or even a patient’s secondary insurance), you will have refund obligations to the patient or other insurance. Remember, you must bill Medicare for Medicare covered services. If the service you provided meets the TIP requirements, then it’s a Medicare billable service. If you do not meet the TIP requirements and you billed other payers, there’s likely no overpayment liability. Stay tuned for further developments as the impact of the implementation of new waiver sets in.   

Christopher Kelly and Dan Pedersen are lawyers with Page, Wolfberg & Wirth LLC, a law firm that focuses on healthcare law as it relates to the EMS and the ambulance industry. This article is not intended as legal advice. For more information or for assistance, they can be reached at (717) 691-0100, info@pwwemslaw.com or at www.pwwmedia.com/store to access PWW’s archived webinar on the TIP waiver.

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