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BLOG: Accepting outside imaging referrals, choosing counsel wisely
Choosing the right lawyer can matter. At a recent speech, I mentioned that clinics can accept referrals from outside physicians to have scans performed on the MRI or other imaging equipment. Afterward, an attendee came up and said she had worked with a local lawyer who insisted it was improper to accept these outside imaging referrals.
The lawyer had a long relationship with the clinic and the clinic assumed the lawyer was giving sound advice. I always want to be sure I am not missing some new federal or state law. Whenever someone disagrees with one of my conclusions my first question is, “What law are you relying on?” I asked the organization to go back to the lawyer and get the citations. I know Florida has a law that limits the percentage of outside referrals a clinic can accept. Other than that, I do not know of limitations in either state or federal law other than the fact that Stark requires any financial relationship between the referring physician and the clinic to meet a Stark exception.
The outside lawyer came back and said he could not find what he was thinking of, but knew there was some sort of limit. Obviously, I cannot know why the lawyer had reached the wrong conclusion, but I have a strong hunch. I will bet almost anything the root of the lawyer’s belief was language that previously appeared in the Medicare Program Integrity Manual. The key sentence was, “However, if a substantial portion of the entity’s business involves the performance of diagnostic tests, the diagnostic testing services may be a sufficiently separate business to warrant enrollment as an IDTF (it is considered independent for purposes of enrollment).”
Now, there are a few things to keep in mind here. First, that manual language referenced whether a substantial portion of the entire entity’s revenue was from outside referrals. I have never seen a physician clinic where a substantial portion of the entire clinic’s revenue came from outside referrals. The text language was not talking about a substantial portion of the imaging referrals; it referred to the entire entity. But more importantly, astute readers will note I was using the past tense. The manual language above was repealed about 10 years ago. The clinic was getting advice from a lawyer who was living 10 years in the past and misreading key language.
What was the lesson? Choose good counsel. You can pick anyone from the entire country. That is certainly true when it comes to the interpretation of federal laws like the Medicare program. Even when it comes to getting an understanding of state law, it is perfectly permissible to ask someone from outside your state. Depending on the situation, the lawyer may choose to involve someone with a local license, but that is usually not necessary.
The fact that a lawyer is expensive, cheap, close or far will not tell you whether the lawyer is competent. Make them support their positions by showing you the rule and explaining their thought process. This new client of mine learned the value of attending seminars and keeping an open mind. Perhaps most importantly, she was reminded that when someone asserts conduct is illegal, that person needs to cite the rule or law on which he or she is relying. Whenever you are told “no,” ask someone to show you the rule.
Disclosure: Glaser reports no relevant financial disclosures.