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Compliance tops turf-battle concerns

Radiology Administrator's Compliance and Reimbursement Insider, March 1, 2007

Editor's note: This is the third in a series regarding approaches to the cardiology/radiology debate over professional ownership of heart imaging techniques and reimbursement.

Name-calling-even the best of us can revert to childhood tactics under overwhelming pressure. The cardiology/radiology fight for control over cardiac-imaging procedures pushes some professionals to just these extremes. Some even take to the Web to compare the practice of providing cardiac-imaging overreads to the oldest profession on earth.

Because cardiologists generally un-derstand the workings of the heart best, many believe they are the most qualified professionals to interpret images of the heart.

However, most imaging techniques capture information from the heart and other areas (e.g., the chest, vasculature, or lungs), which means a radiologist may be more qualified to interpret the images.

To resolve the issue, both sides be-gan performing quality assurance overreads-but who receives payment for which portion of the overread remains problematic.

Malevolent banter does nothing to resolve the complex matters surrounding the problem, but it does illustrate the base level at which the cardiac imaging fight occurs. And like all wars, the one over ownership of cardiac-imaging control essentially concerns two aspects: finances and fairness. That's where negotiation, contracts, lawyers, and laws come in.

"Everyone is trying to figure out how to make this work," said W. Kenneth Davis Jr., of the Chicago office of Katten Muchin Rosenman, LLP, during the September 27, 2006 Radiology Business Management Association Web conference "Pitfalls When Interpreting Cardiac Images: Can They Be Avoided?".

Davis suggested some of the following rules during the Web conference:

Rule #1: Stark law compliance

Depending on your point of view, governmental regulations can either help or hinder your attempts to resolve the cardiac-imaging conflict.

The Stark law essentially attempts to control physician self-referrals. It establishes the following two basic prohibitions:

  • The referral prohibition. Physicians may not refer a Medicare beneficiary to a healthcare entity with which the physician or his or her immediate family has a financial relationship, unless an exception exists.
  • The billing prohibition. A healthcare entity may not bill for improperly referred services.

    Several Stark law rule exceptions do exist. The most significant to cardiac imaging remains the "in-office ancillary services" exception.

    Just as there are always a few bad kids on the playground, there are some physicians who abuse the rules. Over time, some physicians started using the in-office exception to achieve higher reimbursement by owning additional imaging equipment.

    Those who legitimately own scanners to provide valuable resources for their patients' health may fall into the Stark law in-office exception. Seek professional counsel to be sure.

    While attempting to foster more professional relationships between cardiologists and radiologists, make sure to document the terms of the relationship in writing and in compliance with the Stark law personal services exception, Davis said.

    Key provisions of the agreement should address the following questions:

  • How will you divide the study's components?
  • How will you prepare, transmit, and enter transcriptions into the patient record?
  • In shared relationships, who will be responsible for communicating positive findings to the referring physician/patient?
  • What is the compensation and how will you pay it (e.g., based on percentage, an hourly rate, or per interpretation)?
  • Will the agreement grant mutual indemnification?
  • What are the terms and grounds for termination of the relationship (e.g., change in the laws)?

    Rule #2: Play fair

    The most important principle, for compliance purposes, under the federal anti-kickback statute and Stark law (as well as many other state laws) is whether the amount you pay represents fair market value.

    When developing financial agreements for imaging interpretations between radiologists and cardiologists, determining fair market value for the actual work accomplished is vital to the arrangement's success.

    "Neither a radiology group nor a cardiology group should enter into an arrangement if the compensation is not fair market value," said Davis.

    The concern is most acute with respect to any amounts cardiologists receive for making referrals to the radiologists and hospital.

    Tip: Look for a principled way to help both parties determine and document fair market value. Do this through cost benchmarking in your area. Have both sides pick apart the exam and interpretation process and establish a rational approach to allocating the percentage of reimbursement for the interpretations. "And it shouldn't turn into 'I'm the radiologist [or I'm the cardiologist], so I get the big money!' " Davis said.

    Rule #3: Follow the False Claims Act

    The federal False Claims Act imposes civil and, in some cases, criminal liability on organizations and individuals who make fraudulent claims to the government.

    The false or fraudulent claim may be intentional, or it may be due to reckless disregard for the accuracy of the claim.

    Reporting false claims represents a legitimate concern in cardiac-imaging procedures at this point, particularly as it relates to cardiac CT (CCT).

    For example, if a cardiologist reads the heart portion of the CT exam but relies on the radiologist to read the chest portion of the exam, neither side could report a complete CCT scan without concerns of reporting a false claim.

    The eventual resolution of assigning more accurate codes and code descriptions for cardiac imaging procedures across the board could "go a long way to resolving the compliance issues, provided cardiologists become comfortable reading any nonheart portions that still have to be read," Davis said.

    Reporting shared interpretation in every other field offers similar difficulties, and cardiac imaging is no different, Davis said.

    Healthcare facilities often arrange some type of third-party overview or supplemental reading when dealing with rereading, subspecialty groups, or for quality assurance reasons, Davis said.

    Medicare and other payers take notice if facilities bill for such services twice, or they receive a bill for additional charges, he said.

    To reduce the likelihood of being accused of filing a false claim, make sure that no additional charges result from the additional readings.

    Davis allegorically refers to one Medicare carrier's answer to the shared read legality question.

    The carrier asked the following questions:

  • Is the study medically necessary?
  • Does the study meet other required conditions of coverage?
  • Is the complete service documented appropriately?
  • Did one overviewing physician bill for the service once, and only once?

    Under such circumstances, this carrier said it would give its okay.

    To better ensure a clean claim, Davis recommended that you do the following:

  • Document your billing rationale
  • Ensure medical necessity
  • Guarantee submission of only one claim per payer

    Feel free to ask your local carrier for clarification regarding specific practices or claims, but be careful. (Imagine asking the teacher for clarification about those playground rules: "Um, Mrs. Jones, is it not okay to push little Jimmy on the pavement?")

    Determine the risk involved in the resulting answer-you likely won't know for certain what the answer is going to be-and make sure that you plan for potential mitigation. "It's always risky, but asking the Medicare carrier directly may be your best approach to address the false claims concerns," said Davis.

    Overall, when attempting to resolve the cardiac imaging turf war between cardiology and radiology professionals, the best advice may already exist within accessible rules.

    Don't let emotions regarding reimbursement and ownership turn a rational discussion into a schoolyard scuffle, Davis said.

    Insider source

    W. Kenneth Davis Jr., JD, Katten Muchin Rosenman, LLP, 525 West Monroe Street, Chicago, IL 60661-3693, 312/902-5573; Ken.davis@kattenlaw. com.

    Fair market talking points

    Consider the following items when sitting down for fair market value discussions:

    1. Payment to cardiologists for quality assurance overreads must not exceed fair market value

    2. The amounts cardiologists retain must not exceed fair market value after paying radiologists for quality assurance overreads for interpretations by the radiologists of the nonheart portion of studies

    3. Conversely, radiologists cannot accept less than fair market value for quality assurance overreads or for interpreting the nonheart portion of studies

    4. If the billing physician interprets the entire study, he or she should receive all of the professional component compensation

    5. However, in the previous case, the billing physician still should be able to pay fair market value compensation to the nonbilling physician for quality assurance overreads

    6. If the billing and nonbilling physicians share the responsibilities for providing the interpretation (assuming its legal in the first instance to do so), they'll need to determine, document, and defend fair market value for each interpretation

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