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Comanaging services covered by insurance
Can an ophthalmologist share a fee with an optometrist who is not included in a commercial insurer’s physician panel?
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Facts
A patient covered by commercial insurance is diagnosed with cataracts. The patient meets the insurer’s criteria for coverage of the surgery. The patient has advised the ophthalmologist that he understands that his optometrist is licensed to provide postoperative services and that he wishes to return to his optometrist for the provision of postoperative services. The commercial insurer, however, does not recognize optometrists as part of its physician panel.
The ophthalmologist is familiar with the optometrist’s abilities and, when appropriate, has successfully co-managed other cataract surgery patients with the optometrist. In order to accommodate the patient, the ophthalmologist bills the commercial insurer, is paid a global fee for the cataract surgery and the postoperative care, and pays the optometrist an amount for the postoperative services consistent with the Medicare reimbursement guidelines. The ophthalmologist provided the appropriate educational statement and informed consent to the patient just as he does for Medicare patients whenever he co-manages cataract surgery. The patient confirmed his understanding about the need for postoperative services, the difference between an ophthalmologist and an optometrist, and his choice to obtain postoperative care from the optometrist.
May the ophthalmologist collect the global fee and pay the optometrist when the commercial insurer does not include optometrists on its panel?
While the end result of this arrangement is identical with the legally supportable co-management relationship involving Medicare patients, there are a number of issues that are triggered. First, many states prohibit physicians from splitting part of their professional fee with another practitioner outside the practice, even if it is in return for the provision of professional services. It is important, therefore, to review the law in the state in which this arrangement is proposed.
Second, the provider agreement between the ophthalmologist and the commercial insurer or the policies developed by the commercial insurer may similarly prohibit sharing of fees with any practitioner who is not included in the physician panel. Therefore, even if there is no state law prohibition, such an arrangement may violate the terms of the agreement between the ophthalmologist and the insurer and may threaten the termination of the ophthalmologist’s participation on that insurer’s panel.
Generally, however, there will be no clear guidance either in state law or in the provider agreement or policies issued by the commercial insurer. In order to avoid potential liability, the ophthalmologist should send a letter to the insurer and advise that one of the insurer’s subscribers has expressed an interest in obtaining services by an optometrist licensed to perform such services. The ophthalmologist should either seek approval of the proposal or, at a minimum, advise the insurer that the ophthalmologist intends to follow the Medicare guidelines with respect to allocation of the global fee and will compensate the optometrist for the services provided, unless the insurer advises the ophthalmologist that such an arrangement is inappropriate. If the insurer objects, the ophthalmologist should explain to the patient that it is the insurer that is preventing the proposed arrangement from going forward.
A similar inquiry to the State Board of Medicine may also be appropriate and is strongly recommended in states where the fee-split laws appear to prohibit such an arrangement.
For Your Information:
- Alan E. Reider, JD, can be reached at Arent Fox PLLC, 1050 Connecticut Ave. NW, Washington, D.C. 20036; 202-857-6462; fax: 202-857-6395; e-mail: ReiderA@ArentFox.com