Radiologists are responsible for knowing the ins and outs of so many laws, proposals and government organizations that trying to keep track of them all can be downright daunting.
A presentation at this week’s AHRA Annual Meeting in Las Vegas aimed to guide attendees through a variety of these hot topics, helping prepare them for the years ahead.
Adrienne Dresevic and Clinton Mikel, two partners at The Health Law Partners, P.C. in Southfield, Mich., presented the information. They both spoke with RadiologyBusiness.com afterwards to go over some key points in greater detail.
1. A potential update to the Stark Law
The Ethics in Patient Referrals Act (H.R. 939), commonly referred to as the “Stark Law,” places certain limitations on physician referrals. Advanced imaging currently falls under the in-office ancillary services exception, which allows medical practices to provide certain services without violating the Stark Law.
Dresevic and Mikel explained that there have been numerous attempts to remove advanced imaging from this exception altogether, including the Promoting Integrity in Medicare Act of 2013 (H.R. 2914).
“For the past three years, they’ve introduced legislation trying to get rid of the in-office ancillary services exception for certain services, primarily high-end imaging,” Mikel said. “They’ve been beating this drum for a while, and we continue to see publications out of MedPAC continually questioning the medical necessity and whether in-office imaging through the in-office ancillary services exception leads to overutilization and all the costs associated with it.”
So far, none of these attempts have built up enough momentum to move forward, and there are passionate voices on both sides of the argument. But legislators keep introducing these bills, and Dresevic thinks that may be an indication that changes could eventually take place.
“I think we’re seeing a signal that this is something that will go through in the near future,” Dresevic said. “Where as in the past, we saw those kind of proposals, but they were dismissed pretty fast.”
2. Proposed updates to the Anti-Kickback Statute
The federal Anti-Kickback Statute (AKS) protects patients and federal health programs, such as Medicare and Medicaid, from fraud, prohibiting the exchange of anything of value for the referral of a federal program patient. Over time, the Office of the Inspector General (OIG) has introduced various “safe harbors” that are protected from prosecution under the AKS. And in a proposed rule from October 2014, the OIG suggested one safe harbor that stands out to Dresevic and Mikel: free or discounted local transportation.
“Free or discounted transportation has been an area that’s been looked at for a long time,” Dresevic said. “The government has recognized in several favorable OIG advisory opinions that, sometimes, if structured appropriately, it can lead to access of care and there are good reasons you may want to have, for example, transportation offered for certain beneficiaries if they can’t get to their treatment.”
Technically, the AKS does presently allow for a very limited amount of local transportation, but it’s such a small amount ($10 per item or service, $50 over the course of a year) that the OIG felt a separate safe harbor was still required.
There would be strict limitations on the proposed safe harbor, Dresevic explained, so imaging centers may still want to hold off on leasing a stretch limousine for now. For instance, transportation could only be provided to obtain “medically necessary items or services” within 25 miles. And the service would only be available for established patients, keeping it from being used as a bargaining chip to induce referrals of new patients. Transportation by air or a luxury vehicle would also not be protected under the safe harbor.
The proposed rule included other safe harbors and updates as well, and can be read on OIG’s website.
3. The crackdown on commission-based marketing arrangements
“A real hot area that comes up time and time again and is being focused on right now by the government ... is the commission-based sales arrangements,” Dresevic said.
Commission-based marketing arrangements refer to an organization using an independent contractor to market its services and then paying that contractor on a commission. Dresevic explained that many people believe this to be a violation of the AKS, and imaging providers should pay close attention to their marketing staff at all times.