Legal analysis guides surgeons in billing Medicare patients separately for presbyopia correction

These guidelines for billing address the surgeon’s fees, not the cost of the IOL.

Issue: May 1, 2005

ByWilliam F. Maloney, MD

This column has developed a wide and loyal following presumably because we have been writing about important matters related to the most dominant issue in ophthalmic surgery today — lens implant correction of presbyopia. This latest application of lens-based refractive surgery is about to have a profound impact on both refractive and cataract surgery.

This month’s column is certainly one of the most important of all in this series. It provides us with the specific billing guidelines needed for the uncovered “refractive” component of cataract surgery when presbyopia correction is also performed.

At my request, Alan Reider, JD, Allison Weber Shuren, MSN, JD, and their colleagues at the law firm of Arent Fox in Washington, D.C., researched this issue for more than 6 months. Their final report was published in the March 15 issue of Ocular Surgery News. Because this information is vital to the regular readers of this column who are pursuing presbyopia correction, I am going to highlight the most important points here, but I urge you to read the entire report.

Background

$OSN Lens-Based Refractive Surgery [logo]$

Keep in mind that these billing guidelines are specific to the surgeon’s fees for presbyopia correction, which is our concern in this column, not the separate ongoing issue of Medicare reimbursement for premium presbyopia IOLs, which is primarily a concern of the IOL industry.

The legal analysis by Mr. Reider and colleagues begins with a reference to my comments from our annual OSN Section Editor Summit regarding the issues facing cataract surgeons.

In those remarks, I commented that cataract surgeons have continually improved the refractive aspects of cataract surgery, thereby creating “an inflationary ‘bracket creep’ of refractive expectations,” all of which have been performed at no additional charge and, consequently, no reimbursement for the additional service. I observed that cataract surgery effectively has become a refractive procedure, a development that creates a reimbursement dilemma for cataract surgeons. I said at that time that the cataract and refractive components of surgery should have been decoupled at the outset, but instead the opposite has occurred.

These considerations prompted me to ask a bigger question: Will this trend continue, where new developments for the treatment of presbyopia also will become bundled into the payment for cataract surgery?

Mr. Reider and colleagues said their analysis attempts to “provide some clarity and guidance for the surgeons who expect to treat presbyopia in cataract patients.” They succeeded in their attempt, and their analysis is sure to be an important guide for surgeons who perform refractive cataract surgery in the coming months and years.

Halting refractive bracket creep

As I have said on more than one occasion, “As cataract surgeons, we are all refractive surgeons now in every sense of the word but one. We are still cataract surgeons only when it comes to reimbursement.” This is an issue of major concern at this juncture.

Uncorrected distance vision has already become a widely expected result of routine cataract surgery. This is evidenced by the alarming fact that the most frequent claim of malpractice in cataract surgery today relates to its refractive results — incorrect IOL power calculations. As uncorrected vision has increasingly become part of our cataract patient’s expectations, an incorrect IOL calculation is often anything that does not eliminate glasses, at least for distance vision.

Will reading vision correction be added to this mix as presbyopia correction becomes more widely practiced? Will the refractive bracket creep of the past decade slowly start to include presbyopia treatments? These are the vital questions cataract surgeons are facing.

Below are the related questions I asked Alan, Allison and their colleagues to address as part of their legal analysis of this issue. The answers to my questions are excerpted from their full analysis as it was published in the March 15 issue.

Is presbyopia correction about to be bundled with routine cataract surgery as it becomes more widely used?

The simple answer is that it should not, and if physicians follow appropriate guidelines, it will not. Despite the Medicare program’s tendency to incorporate more services into the description of a covered benefit, those bundles are limited to covered services. … [An alert issued last year by the Office of the Inspector General] contained the following statement: “Medicare participating providers can charge Medicare beneficiaries extra for items and services that are not covered by Medicare.”

… [A]s a refractive procedure, there is no question that correction of presbyopia is not covered by the Medicare program. Therefore, the government acknowledges clearly that physicians may charge patients for these services.”

What about the related diagnostic or preoperative evaluation tests used in presbyopia correction?

[D]iagnostic or preoperative evaluation tests, such as corneal topography, wavefront analysis, ocular dominance tests and pupillometry, that may be necessary to perform in anticipation of the correction of presbyopia, [to the extent that these services are performed solely for the purpose of performing the presbyopia correction] are noncovered and should be separately billable to the patient. However, any tests, such as preop refraction, that are part of the recognized bundle of services performed with traditional cataract surgery are covered and may not be billed separately, even if they are also used in connection with presbyopia correction.

What should guide surgeons in setting their separate fees for presbyopia correction and related procedures such as astigmatic keratotomy?

When performing noncovered services in conjunction with an otherwise covered service, physicians must be cautious to avoid allegations that the amount charged for the noncovered service is not inflated and designed, in part, to supplement the reimbursement for the covered service. Reimbursement for the covered cataract surgery procedure is still subject to the assignment rule or, for those physicians who do not accept assignment, to the limiting charge rule. Therefore, it is important to be certain that the amounts charged for the services are clear and maintained separately. …

Furthermore, physicians who charge unreasonably high amounts for noncovered services could face allegations of unethical conduct under their state licensing laws. While physicians must set their own fees, one guideline to consider is that in the rare instance when Medicare recognizes the medical necessity of surgical correction of astigmatism, the current reimbursement is approximately $450.

What if a surgeon decides not to begin charging the patient for presbyopia correction or other uncovered services performed in conjunction with cataract surgery?

Because correction of presbyopia is a noncovered service and is separately billable to patients, physicians should be cautious to avoid the risk of violating the patient inducement prohibition by offering these services at no extra charge in connection with cataract surgery. If a physician is not comfortable charging for these procedures and wants to offer them at no charge to his or her patient, such an offer should be made only after the patient has agreed to go forward with cataract surgery. This should minimize the risk of an allegation that the promise of free services was designed to induce the patient to select the physician to perform cataract or other covered service.

Summary of analysis

I want to thank Alan, Allison and their legal team for their efforts. This is a major contribution at a critical juncture in the development of presbyopia correction.

A point-by-point summary of their analysis is reproduced in the table below.

Next month

Myopic defocus: An important tool in presbyopia correction, no matter which IOL you choose.

Guidelines for physicians who want to offer
presbyopia correction to Medicare patients

Correction of presbyopia
Physicians may charge patients a separate fee for the correction of presbyopia.
Diagnostic tests for presbyopic correction
Physicians may charge patients for the preoperative diagnostic tests performed in connection with the correction of presbyopia but only if those services are not related to the performance of traditional cataract surgery and IOL implant or other covered procedure being performed.
Identifiable amount
Physicians should charge patients a separately identifiable amount for the correction of presbyopia rather than a global fee combined with the cataract surgery.
Because correction of presbyopia is a noncovered service under Medicare, physicians are not obligated to provide patients with an Advance Beneficiary Notice advising them that Medicare will not pay for their service. Nevertheless, physicians may wish to provide patients with a notice explaining that the service is noncovered under Medicare and that the patient is solely responsible for payment.

For patients who have a supplemental insurer that may cover refractive procedures but requires a denial from Medicare, a claim may be filed using the -GY modifier to indicate to Medicare that this claim should be denied.
Reasonable charge
Physicians should be cautious to avoid the allegation that the charge for the correction of presbyopia is inflated to subsidize the underpayment for cataract surgery. While the Medicare program does not limit what a physician may charge for a noncovered service, the Medicare program wants to be certain that physicians are not overcharging patients for noncovered services to subsidize the Medicare fee schedule. Furthermore, physicians who charge unreasonably high amounts for noncovered services could face allegations of unethical conduct under their state licensing laws. While physicians must set their own fees, one guideline to consider is that in the rare instance when Medicare recognizes the medical necessity of surgical correction of astigmatism, the current reimbursement is approximately $450.
Free service option prohibited
Physicians who choose not to charge patients an additional amount for the correction of presbyopia may do so, but they are prohibited from offering the free service as an inducement to perform the cataract surgery. In such cases, physicians should advise patients of the availability of this additional procedure only after the patient has agreed to have cataract surgery.

Source: Reider AE

For Your Information:

William F. Maloney, MD, is head of Eye Surgery Associates of Vista, Calif., and a well-known teacher of cataract and lens-based refractive surgery techniques. He can be reached at 2023 West Vista Way, Suite A, Vista, CA 92083; 760-941-1400; fax: 760-941-9643; e-mail: maloneyeye@yahoo.com. In the interest of objectivity, Dr. Maloney has no financial interest in any ophthalmic product and has no financial relationship with any ophthalmic company.