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Supervision of diagnostic tests
Is a solo practitioner breaking the law by allowing a technician to perform scans when the physician is not in the office?
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Facts
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![Alan E. Reider, JD [photo]](/images/commonart/reider.jpg)
Dr. Jones is a solo practitioner who specializes in cataract surgery. In order to increase the efficiency of her practice and give patients more flexibility in scheduling appointments for diagnostic tests, including B-scans (CPT codes 76512 and 76513), Dr. Jones schedules her ophthalmic technician, Ms. Young, to be in the office 5 days a week to perform such tests. Because Dr. Jones has confidence in Ms. Young’s clinical and technical skills, Dr. Jones permits Ms. Young to perform these tests while Dr. Jones is at the hospital performing surgery. One day while scrubbing for her next case, Dr. Jones began talking with Dr. Sheehan, another ophthalmologist who performs surgery at the same hospital, about the difficulties of running a solo practice and how she relies on Ms. Young a great deal. Dr. Sheehan informs Dr. Jones that based on information he received at a recent lecture on fraud and abuse, he thinks she might be breaking the law by allowing Ms. Young to perform the scans when Dr. Jones is not in the office.
Is Dr. Sheehan correct?
Yes. When Dr. Jones submits claims for the scans she did not supervise directly, she is violating the Medicare coverage and payment rules, as well as the Federal Physician Anti-Self-Referral Act, more commonly referred to as the Stark Law.
Diagnostic tests covered under the Medicare Physician Fee Schedule must be performed, with certain exceptions, under the supervision of a physician in order to be considered reasonable and necessary and, therefore, covered by Medicare. The Medicare coverage and payment rules require that B-scans described by CPT codes 76512 and 76513 be performed under the direct supervision of a physician. This means that in order for B-scans to be reimbursed, the physician must be in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure.
In addition to the supervision requirement related to reimbursement, the Stark Law has supervision requirements as well. The Stark Law prohibits a physician from ordering a service that is provided by an entity in which the physician or an immediate family member has a financial relationship if the service falls within one of the categories of designated health services (DHS) covered by the Stark Law and is reimbursed by Medicare or Medicaid, and if the financial relationship does not qualify for an exception. The services covered by the law include B-scans and other diagnostic imaging services such as CT scans, MRI and ultrasound. Penalties for violating the Stark Law include forfeiture of any reimbursement for services rendered based on an unlawful referral, civil fines of up to $15,000 per violation and exclusion from the Medicare and Medicaid programs.
Because of the broad scope of the Stark Law, Congress exempted certain types of referrals from the self-referral prohibition and authorized the Secretary of the U.S. Department of Health and Human Services to except, by regulation, other arrangements the department believes pose little fraud and abuse risk. A referral that otherwise implicates the Stark Law must fall within a statutory or regulatory exception or it is, per se, illegal.
Referrals for a DHS, even if referred within a solo practice, trigger the Stark Law. Congress, however, recognized that it may be cost-efficient and convenient for Medicare beneficiaries to obtain certain DHS at their doctor’s office and therefore crafted the “in-office ancillary services” exception that permits referrals for DHS performed within a physician’s own practice. Under this exception, referrals such as the one Dr. Jones makes for the B-scan are permitted so long as a number of criteria are met. One such criterion is that the DHS must be furnished personally by the referring physician, by a member of the same group practice as the referring physician, or by an individual who is supervised by the referring physician or by another physician in the group practice.
In determining the level of physician supervision (either general, direct or personal) an individual furnishing a DHS to a Medicare beneficiary must be under for purpose of meeting the in-office ancillary services exception, the Stark law defers to the Medicare coverage and payment rules. Because Medicare has determined that B-scans represented by CPT codes 76512 and 76513 must be performed under a physician’s direct supervision in order to be covered, this same standard applies when deciding whether a referral qualifies for the in-office ancillary exception. As a result, Dr. Jones’ arrangement violates the Stark Law as well as the requirements for reimbursement.
For Your Information:
- Allison Weber Shuren, MSN, JD, can be reached at Arent Fox PLLC, 1050 Connecticut Ave. NW, Washington, DC 20036-5339; 202-775-5712; fax: 202-857-6395; e-mail: shuren.allison@arentfox.com.