Ask The Expert

Ask the Expert 8/15/07 Stark wars between docs and CMS Q. I heard that a new Stark regulation could force doctors to end shared labs and imaging centers. Can you elaborate on this? A. CMS says it wants to close 'the big gaping loopholes in the Stark law, for goodÓ and has issued proposed changes for comments. Geared towards imaging centers, CMS threatens to make some joint ventures with hospitals and other physicians illegal. While nothingÕs yet set in stone, hereÕs whatÕs on the table: Ban 'marking up' the technical component of purchased imaging tests performed by third parties, which are then billed to Medicare by a different provider. In other words, if a physician paid anyone else to perform an imaging scan, she couldn't charge Medicare more than she paid the person who performed the scan. Ban payments on a 'per-click' basis. That means if a group of physicians jointly owned an X-ray machine, they couldn't receive payments based on how much they used the machine. If a physician used the machine 20 percent of the time, the joint venture couldn't give that doctor 20 percent of the revenue. Ban payments to physicians who refer patients to an imaging center jointly owned by the physicians and the hospital (except in rural areas). CMS says that if physicians enter into a joint venture to provide services to a hospital, then the joint venture is the provider of those services, not the hospital. Because physicians can't send patients to any entity they own part of, they wouldn't be able to refer any patients to those joint ventures. These joint ventures would no longer fit into any exemptions to the law, unless they take place in rural areas. These sorts of joint ventures to provide services to a hospital are known as 'under arrangement,' and doctors can't invest in a joint venture and refer patients to it -- except when it's 'under arrangement' to a hospital. But now CMS wants to close that loophole for good. Ban part-timers. Any technicians who perform tests for physician practices must be full-time employees -- which could prevent doctors from having technicians work part-time for their practices. Otherwise, the test counts as a 'purchased' test, and practices can't charge Medicare more than what they pay the technician. Solicits comments on whether the in-office ancillary services exception -- which many group practices rely on for their in-office labs -- should be changed. How worried should you be about all this? These changes to the Stark physician self-referral law are in the 2008 physician fee schedule proposed rule, which also calls for a 9.9% cut in physician payments. I donÕt believe either will become law, since for the last several years, last minute scrambling on Capital Hill has always abolished drastic physician pay cuts. I also donÕt believe the group practice exception will ever be changed (CMS is only asking for comments now) and regarding the other points, the stark reality for you is that if this legislation ever becomes law, you may need to either restructure some deals or buy your own imaging equipment. To comment on the proposal, go to www.cms.hhs.gov/eRulemaking. Stay tuned! Gag me with a pandemic flu mask Q. We just bought our first box of disposable N-95 masks and I find it virtually impossible to breathe in them. Did I just choose a bad brand or are all of them so suffocating? A. Yes, every brand IÕve tried is equally suffocatingÉand Š get this ŠIf thereÕs a shortage of N-95Õs during a pandemic flu, Uncle Sam advises healthcare workers not to wash and reuse them, but to place a surgical mask over an N95 mask and change the surgical mask and re-use the N-95 mask. Can you say asphyxiation? Now youÕve tried walking around performing normal activities wearing a N-95 mask. Good. Now try putting a surgical mask over it and see how long it takes you to turn blue. CLIA personnel requirements A. Does CLIA accept personnel who have gone through an MLT program, but who have no certification? At my last place of employment, a moderately complex bordering on complex urgent care lab, we had two such employees. I once questioned the fact that they were solely in charge of the lab on Sundays and was told that they were not required to have any certification. Is this true? A. The CLIA regulation is very lax when it comes to personnel standards. Here are the facts: Anyone who can fog a mirror can run CLIA-waived tests! Moderately complex tests can be performed by those with only a high school diploma (or GRE) a long as they have documented training for these tests. These folks can independently staff the laboratory as well. Examples of moderate complexity tests are CBC's, chemistry and immunoassay analyzers. Someone with at least a 2-year degree, such as a MLT, must perform high complexity tests, such as cultures and sensitivities. Supersizing healthcare Q. Our local Wal-Mart (Florida) is opening a Minute Clinic. Do physicians staff these clinics? IÕm a family practice physician and donÕt like this trend at all. A. Often maligned for woeful health benefits for its 1.3 million workers, Wal-Mart is adding 50 more in-store health clinics this year to add to its nine clinics in stores in Arkansas, Oklahoma and Florida. These clinics can do a heck of a lot of business; Wal-MartÕs three clinics in Arkansas treated a whopping 4,300 patients in the first six months of operation. Unlike the other Minute Clinics we reported about in a previous Ask The Expert column that were staffed by nurse practitioners, doctors work in Wal-MartÕs clinics and they treat most non-emergency illnesses, such as strep throat, ear infections and the like. Costs average between $45 and $50 per visit and many patients pay out of pocket. Minute Clinics will continue to be a thorn in the sides of local primary care physicians who are scrambling to compete by such tactics as evening and weekend hours and open access scheduling. Bidding for lab business? Q. IÕm contemplating expanding my office laboratory, but am concerned about something I read involving competitive bidding for Medicare lab business. It sounds like all lab work will have to be performed by the lab that won the bid. Is this true? A. The competitive bidding issue for lab work has been dragging on for years and promises to continue to do so for several more before it hopefully, fizzles out altogether. Rest assured that it applies to labs performed by entities without a face-to-face encounter with patients and it excludes Pap and colorectal screening tests. Every major lab group is opposed to the concept whereby labs bid for Medicare work. In fact, only CMS seems to think itÕs a good idea. The ŅCommunity Clinical Laboratory Fairness in Competition Act (HR 3453)' was introduced on August 4, 2007, which would repeal the Medicare Clinical Laboratory Competitive Bidding Demonstration Project. The bill also calls for the CMS to submit a report to the House Committee on Small Business and Entrepreneurship of the Senate with an analysis of the impact of competitive bidding on small clinical laboratories. If not overturned, hereÕs how competitive bidding will work. There will be two demonstration sites based on Metropolitan Statistical Areas (MSAs). Each site will run for three years with a staggered start of one year. Laboratories that have supplied at least $100,000 in demonstration tests to Medicare beneficiaries residing in the MSA in 2005 are required to bid. Bidders that win will be paid the competitively bid fee schedule for demonstration tests supplied to Medicare beneficiaries residing in the MSA. Bidders that lose will not be paid for tests supplied to Medicare beneficiaries residing in the MSA for the duration of the demonstration. Bottom Line: As a firm believer in Ņyou get what you pay forÓ, I predict that the odds are stacked against this one. Lab tests are not commodity items that can be farmed out to the lowest bidder. Coding conundrum Q. We use a HemoCue Glucose Analyzer in our practice. Our new billing manager says weÕre not allowed to bill using 82947 even though this is the CPT Code assigned to the product. Her reasoning is based on this statement in the Coder's Desk Reference for Procedures: 'blood specimen is obtained by venipuncture' and we collect fingerstick blood specimens. Do you have any suggestions? A. Your billing manager is justified in wanting all codes to be squeaky clean, but in this case you win the argument. HereÕs how to prove it to her and any pesky Medicare auditors (shudder at the thought). Whenever a manufacturer gets FDA clearance for a product, the letter from the FDA (and the press release) lists the CPT code that should be used for that test. So, contact the manufacturer, get a copy of that letter (on FDA letterhead), and let the billing department keep it on file in case of an audit. Also, the original AMA CPT code book never mentions the type of specimen (venipuncture versus whole blood) for this code.