On July 7, 2022, The Centers for Medicare and Medicaid (CMS) issued a proposed rule that introduces and solicits public feedback on proposed policy changes in the 2023 Physician Fee Schedule (PFS) for Medicare payments. The PFS system governs payment for services of physicians and other professionals who bill Medicare.

The proposed change to the PFS is one of several proposed rules designed to create a more equitable health care system that results in better accessibility to high-quality care, including behavioral health. One key recommendation in the proposed rules is to increase access to mental health counselors and marriage and family therapists. Currently, Medicare will reimburse for services provided by LPCs or MFTs under the physician’s name only. In addition, those services must occur directly as a result of the treatment of a physician and the physician must be on-site. These requirements are referred to as the “incident to” requirements and are very strict, allowing only a small number of counselors and MFTs to be reimbursed for services.

The proposed rule to update the PFS would allow MFTs and LPCs to provide “incident to” services without a physician specifically on-site. This will increase the number of counselors and MFTs able to bill Medicare as long as they are supervised by a physician and their services are “incident to” treatment from a physician. The idea is to make it easier for rural and underserved communities to access services.

In the rule, CMS specifically states: “CMS does not have authority to create a statutory benefit category for practitioner types. Therefore, we are proposing to amend the direct supervision requirement under our ‘incident to’ regulation at § 410.26 to allow behavioral health services to be furnished under the general supervision of a physician or NPP (Nonphysician Practitioner) when these services or supplies are provided by auxiliary personnel ‘incident to’ the services of a physician or NPP.” The proposed changes to the PFS are an attempt by CMS to improve access to care without updating the statute.

Although the proposed rule is an incremental step in the right direction for counselors, it does not replace the urgent need to pass the Mental Health Access Improvement Act of 2021 (H.R. 432/S. 828). The Mental Health Access Improvement Act, currently being considered by Congress, would authorize mental health counselors and marriage and family therapists as approved providers to serve Medicare beneficiaries without stipulations or the requirement of supervision. 

NBCC works closely with CMS and fully supports the proposed rule changes to the PFS. We will submit comments supporting this aspect of the proposed rule and continue to advocate for counselors within the CMS system. If approved, these changes would be effective after Jan. 1, 2023. In addition, we will continue to advocate for the passage of the Mental Health Access Improvement Act of 2021 (H.R. 432/S. 828), which would make counselors and MFTs eligible Medicare providers. Visit the NBCC Action Center for updates.