What's new in supervision? Fines, legal expenses, and exclusion from Medicare.
Editor's Note: This is the first of a two-part article about the supervision of medical imaging. The second part will appear in the April 2012 issue of the ACR Bulletin.
We hope that all ACR members know by now that Medicare has very specific rules of the supervision of medical imaging and treatment. However, based on recent enforcement actions, as well as inquiries from members and their staffs, this is a good time to review the rules and the potential penalties for those who fail to follow them.
As Medicare costs continue to increase, there has been enormous pressure on CMS to somehow reduce these costs. As every member knows, one approach has been to cut payments to physicians. However, such cuts have been unpopular with both physicians and their patients, many of whom are concerned about continuing to access to the type of care they have grown used to. On emotional issues like this, legislators listen to patients and doctors, so in at least some situations, the reimbursement cuts have been restored, or at least lessened.
A second CMS approach has been to claim that there is a huge amount of fraud, waste, and abuse in the Medicare system and to develop programs to detect and prevent such fraud as well as aggressively pursue recovery of such fraudulent payments. These efforts are widely and loudly publicized and are popular with both patients and legislators. Unfortunately, the targets of some such efforts are physicians and their facilities, and federal authorities are devoting greatly increased resources to bringing cases against these alleged evildoers.
So, what does this mean for radiologists? Among other tactics, federal authorities have begun treating a lack or improper level of supervision as a basis for charging the physician and facility involved with making a false claim under Medicare. So far, these charges have been made only in civil cases, but have resulted in multimillion dollar penalties for the defendants.
To help you protect yourself from accusations of fraud, it is important to know the CMS regulations on supervision. At first, they may appear simple, but they can actually be somewhat confusing. Here is a brief primer on the basic CMS guidance:
Medicare requires that a physician must supervise patients who undergo diagnostic studies payable by Medicare under its physician fee schedule in outpatient, non-facility settings.1 The physician must provide general, direct, or personal supervision.
• General supervision means the procedure is furnished under the physician's overall direction and control, but the physician's presence is not required during the performance of the procedure. Yet the physician remains responsible to train such nonphysician personnel as technologists, who actually perform the procedure, and to maintain the necessary equipment.
• Direct supervision in the office setting means the physician must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure. However, the physician does not have to be present in the room when the procedure is performed.
• Personal supervision means a physician must be in attendance in the room during the performance of the procedure.
Physicians at Independent Diagnostic Test Facilities (IDTFs) must follow more rigorous rules when supervising diagnostic studies. They may generally supervise no more than three IDTFs but may directly supervise concurrent tests. Notably, a supervising physician at an IDTF must evidence proficiency in the performance and interpretation of each type of diagnostic procedure performed by the IDTF — as documented by certification in specific medical specialties or subspecialties or by criteria that a local Medicare carrier establishes at its own discretion.
Hospital-based radiologists fall under the fee schedule supervision rules for diagnostic studies. However, CMS modified its supervision requirements for outpatient therapeutic services, ostensibly to provide more flexibility for hospitals and physicians. For example, CMS redefined "direct supervision" for all hospital outpatient services to permit physicians to be "immediately available" without having to be in the boundaries of a physical location.
Seems simple, right? Then why has this drawn so much attention? In part, it's because of CMS's interpretation of these regulations. Also, CMS has delegated to its carriers the ability to prescribed criteria qualifying individuals as supervising physicians.
Essentially, this means that each carrier can set different training or certification requirements within its own area. Obviously, this can create difficulty for radiologists or facilities that operate in multiple carrier jurisdictions. For example, a carrier may specify that any board-certified radiologist is a qualified supervising physician, while other physicians must meet additional training or experience requirements to qualify. In next month's RADLAW, we'll discuss recent federal cases on supervision that have had major consequences for radiology.
1. Medicare defines a “physician” as an M.D. or D.O., although it also includes dentists, optometrists, podiatrists, and chiropractors for specific services authorized under state law.
By Bill Shields, J.D., LL.M., CAE, and Tom Hoffman, J.D., CAE