Attorneys tackle overpayments, RAs, courtesy exception to Stark

Radiologist assistants (RAs) and radiology practitioner assistants (RPAs) may not supervise any imaging exams.

This isn’t new and it isn’t news, but it does answer a question submitted by an anonymous attendee of the Dec. 10 Reed Smith teleseminar on False Claims Act allegations against radiology groups and imaging centers.

Two days after the session, the firm emailed attendees with an addendum in the form of three post-seminar questions submitted to—and answered by—the seminar leaders, Tom Greeson, JD, MBA, and Paul Pitts, JD, MHA. The exchanges went as follows:

Attendee: Where do you stand on offering Professional Courtesy to physicians in the community (and their families)?

Greeson/Pitts: CMS has adopted a courtesy exception to the Stark anti-referral regulations. To fit within this exception, the professional courtesy must satisfy all of the following requirements:

1. The courtesy may only be offered by entities with a medical staff, which includes group practices, hospitals, and other similar entities. Solo practices do not qualify and, thus, solo practices generally cannot extend professional courtesies to outside physicians or their family members if the physician refers patients to the solo practice for “designated health services” (72 FR 51064).
2. The courtesy must be offered to all physicians on the entity’s medical staff or in the entity’s local community without regard to the volume or value of referrals or other business generated between the parties.
3. The entity’s professional courtesy policy must be set out in writing and approved in advance by the entity’s governing body.
4. The courtesy offered by the entity may only apply to health care items or services of a type routinely provided by the entity.
5. The courtesy may not be offered to any physician (or the physician’s family member) who is a federal health care program beneficiary unless there has been a showing financial need.

What is sometimes overlooked is that this Stark exception also states that the arrangement must not violate the anti-kickback statute. For guidance as to how the OIG view professional courtesy, the following is taken from the OIG Compliance Guidance for Individual and Small Group Physician Practices. The OIG is careful to say that professional courtesy arrangements will turn on the specific facts presented and the specific intent of the parties.

The following is the excerpt from the OIG’s guidance published in the Federal Register on June 12, 2000:

“The term ‘professional courtesy’ is used to describe a number of analytically different practices. The traditional definition is the practice by a physician of waiving all, or a part, of the fee for services provided to the physician’s office staff, other physicians, and/or their families. In recent times, ‘professional courtesy’ has come to also mean the waiver of coinsurance obligations or other out-of-pocket expenses for physicians or their families (i.e., “insurance only” billing), and similar payment arrangements by hospitals or other institutions for services provided to their medical staffs or employees. While only the first of these practices is truly professional courtesy, in the interests of clarity and completeness, we will address all three.

“In general, whether a professional courtesy arrangement runs afoul of the fraud and abuse laws is determined by two factors: (i) how the recipients of the professional courtesy are selected; and (ii) how the professional courtesy is extended. If recipients are selected in a manner that directly or indirectly takes into account their ability to affect past or future referrals, the anti-kickback statute which prohibits giving anything of value to generate Federal health care program business may be implicated. If the professional courtesy is extended through a waiver of copayment obligations (i.e., “insurance only” billing), other statutes may be implicated, including the prohibition of inducements to beneficiaries, section 1128A(a)(5) of the Act (codified at 42 U.S.C. 1320a(a)(5)). Claims submitted as a result of either practice may also implicate the civil False Claims Act.”

Attendee: If one were to identify a backlog of refunds and begin to catch those up within the 60-day window, is there a duty to report the backlog to an entity, and/or are there fines related to missing that time window?

Greeson/Pitts: This is a question of the facts as you know them. If you are certain of an overpayment or a collection of claims that are overpayments, the 60 day clock may be running. If you are still evaluating the totality of the potential overpayment—and whether individual claims are in fact overpayments—and your audit continues that could impact your decision on whether there is an overpayment obligation, the 60 day clock may not have begun. As we indicated [Dec. 10], the Kane case may prove to be instructive.

Attendee: How would radiologist assistants and radiology practitioner assistants be used in the hospital setting?

Greeson/Pitts: RAs and RPAs are well trained and talented professionals. Until there is a change in the Social Security Act, they may not perform like PAs or NPs. They may not supervise tests, and they may not perform physician services.

RAs and RPAs are well trained and talented professionals. Until there is a change in the Social Security Act, they may not perform like PAs or NPs. They may not supervise tests, and they may not perform physician services.

[Editor’s note: Reed Smith has now posted slides shown during the seminar.]