Interpretations: A Whole New Maze
For my very last session at this year’s RBMA fall conference (sniff) I joined Tom Greeson’s talk on the puzzle of supervision and interpretation agreements. Greeson hails from Reed Smith LLP, where his practice focuses on health law, Medicare reimbursement, legislative and regulatory issues. “I thought maybe I’d get five people,” Greeson said to the packed room in introduction. “My hope for this presentation is to talk about the various outside reading arrangements you may find yourself getting involved in. They’re not just business relationships; these arrangements involve a maze of regulatory issues.” Greeson began with an overview of the types of interpretation agreements, including PSA with separate billing, PSA with reassignment, PSA for “purchased interpretations” (which is now extinct) and “overread” agreements (which Greeson says to approach with caution). Outside reading contracts can be with referring physician groups, other radiology groups or IDTFs. “The issue is where do you provide the services, and can you provide them remotely?” Greeson said. IDTFs can bill globally or separately, as can referring physician offices, while radiology clinics must bill globally. “If you’re organized as a radiology clinic and decided to bill TC only, CMS has said to Medicare contractors is that if an entity is owned by radiologists and it bills for TC services only, it should be listed as an IDTF,” he said. With regard to Medicare reassignment rules, only the Medicare beneficiary or the party that provided the services can accept assignment of the beneficiary’s claim. But there are a few exceptions that allow physicians to reassign their rights to bill, including the contractual reassignment exception, which allows services to be reassigned to another physician practice. The exception was quickly modified by a CMS transmittal subjecting the reassigned party (i.e. the radiologists) to program integrity requirements, making them liable for overpayments. “It says to the contractor, you can’t just wash your hands of the responsibility for your services,” Greeson said. “But there are other issues that come into play here as well.” For instance: is the interpreting physician responsible for creating an order? “For the last two years, some auditors have been instructed to start asking interpreting physicians for a copy of the order,” Greeson said. “They’ve been asking both radiologists who provide services in hospitals and in outside reading arrangements. We’ve pushed back and said to them, the testing facility has the responsibility to get the order.” This summer, CMS adopted an interim final rule on the retention of orders saying that the parties who receive orders should retain them for seven years, and they listed imaging specifically.” Greeson hopes CMS will clarify that this only applies to the TC, but in the meantime, the possibility of overpayment liability remains. Meanwhile, if you have a contractual reassignment arrangement with a referring physician practice, CMS wants you to remember that you still need to comply with both the in-office ancillary services exception and the physician services exception. “We’re back to the scenario where if you’re an independent contractor providing services to a referring physician practice, Stark still applies to those services where the test was ordered by an investor physician,” Greeson said. “That brings you squarely back to the premises requirement.” With the recent adoption of the anti-markup rule, CMS amended its definition of an “entity” in the Stark rule to say that the referring physician is not making a referral to a Stark entity if said entity wasn’t making any profit. “We’ve gone from a situation where CMS required services on the premises, then off, then on, and now off under certain circumstances,” Greeson summarized. Radiology services can be provided from just about anywhere, but they can’t be purchased from anywhere anymore: in a transmittal issued in January of this year, CMS eliminated “purchased interpretations” from the Medicare Claims Processing Manual. “They did a cut and paste job in their rules, and everywhere it said ‘purchased’ they replaced it with ‘anti-markup,’” Greeson said. “Consequently, IDTFs are now required to get reassignment from the interpreting physicians.” This impacts all interpretation services radiology groups provide to anyone, Greeson said, because plenty of radiology groups now provide services for facilities in different states, be they teleradiology practices or simply practices close to state lines. Now those groups must enroll with the Medicare contractors in every state where they read. Continuing the newfound fixation on location, the anti-markup rule now includes a new wrinkle: anti-markup can be triggered when referring physicians and ordering physicians “share” a practice, i.e. are co-located. In that case, payment to the billing physician is the lesser of the following: the performing supplier’s net charge to the billing physician; the billing physician’s actual charge; or the MPFS amount that would be allowed if billed by the performing supplier. “The big question is really not about the interpretation of services,” Greeson noted. “The real question is whether the TC service was actually performed by a physician who did not ‘share’ the practice, and that’s where things start changing.” So: can a referring physician group bill globally if two different physicians provided the TC and PC? CMS has said to bill globally only if the same physician supervised and interpreted the test—even within a group. “This is a requirement that relates only to anti-markup tests,” Greeson said, then added, “although I actually think we’re moving toward an era of transparency and accuracy when it comes to billing for TC and PC services. CMS wants to know who provided the service and when, and they really want to know where.”