On July 7, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule for changes starting in 2023 that would expand access to behavioral health services and allow some LMFTs more flexibility in treating Medicare enrollees. Every year, CMS releases a rule, known as the physician fee schedule (PFS), which makes changes to fees CMS pays to Medicare providers and other administrative changes through rulemaking that CMS is proposing for the coming year.
Change to the Medicare “incident to” rule
CMS is proposing several changes to Medicare’s rules pertaining to behavioral health, including one major change pertaining to providing incident to services that impacts MFTs. Under current regulation , an LMFT or LMHC could provide services to Medicare beneficiaries “incident to” the services provided by a physician or other qualified supervising provider (usually a psychologist) if the LMFT or LMHC is under the direct supervision of the supervising physician or other supervising provider. Under Medicare’s current rules , “direct supervision” means that the physician or other supervising provider must be in the same office suite and be immediately available to furnish assistance and direction when the LMFT is providing services to a Medicare beneficiary.
Under the proposed rule, CMS would allow LMFTs and other qualified professionals to provide behavioral health services under the “general supervision” of a physician or other qualified supervising provider. Under the general supervision standards , an LMFT’s incident to services to a Medicare enrollee would be under the overall direction and control of the physician or other supervising provider. However, the general supervision requirements do not require the supervising practitioner to be in the same office suite as an LMFT when the LMFT is providing behavioral health services to Medicare beneficiaries. CMS believes that removing the direct supervision requirement will allow an increase in the utilization of behavioral health services by older adults and other Medicare beneficiaries.
This change, if adopted, will result in additional services to Medicare enrollees starting in 2023. However, due to overall restrictions in federal statute preventing the full and proper utilization of MFTs and MHCs as eligible providers, this change will likely not have a significant impact on the ability of Medicare enrollees to receive necessary behavioral health services or result in a significant increase in the number of LMFTs providing incident to services As most licensed behavioral health providers practice in settings where they are not employed by or working directly with physicians or other qualified supervisors, most LMFTs will not have an opportunity to utilize these new flexibilities. Many potential supervisors might not have the time or the ability to provide general supervision under the incident to standard. Other restrictions also make it difficult for this change in the incident to rule to have a significant impact on behavioral health access for most Medicare beneficiaries. The proposed rule would still not allow Medicare to directly reimburse LMFTs and would still not allow LMFTs to directly bill Medicare for services provided to Medicare enrollees.
Impact of the “incident to” rule change
AAMFT supports the expansion of the overall ability of MFTs and other behavioral health providers to provide incident to services to Medicare enrollees under the general supervision standard. The federal government’s support for expanded access to behavioral health services is reflected in President Biden’s budget for Fiscal Year 2023 , which, if adopted, would provide the largest amount of federal financial support in history for mental health services, and would modernize Medicare mental health benefits by allowing LMFTs and LMHCs to serve as Medicare eligible providers. Under the current CMS Behavioral Health Strategy , one goal is to improve access to and quality of mental health care and services.
AAMFT applauds CMS for doing as much as this agency can under federal law to improve access to behavioral health services for Medicare beneficiaries. In the proposed rule, CMS is doing all that can be done under current federal law to allow MFTs to provide services to Medicare beneficiaries, as CMS clearly states that it does not have the authority to add LMFTs and LMHCs as Medicare billable providers. Since only Congress can change federal statute to add LMFTs as providers eligible for direct reimbursement by Medicare, it is critically important that Congress pass the Mental Health Improvement Act of 2021 (S. 828/H.R. 432). If you have not already done so, please contact your Members of Congress now to urge them to pass the Mental Health Access Improvement Act.
The full text of the proposed rule can be found here . AAMFT will be providing public comments by September 6 to CMS regarding this proposed rule. Please contact AAMFT at FamilyTEAM@aamft.org if you have any questions.
