Physicians know that they violate
the antitrust laws if they enter into agreements
on fees they will charge patients or third-party
payers. Independent practices also engage in illegal
price-fixing if they work together to set the amount
of hospital stipends they accept.
The San Diego Union-Tribune reported on
May 31 that two local anesthesia groups had settled
federal charges that they had unlawfully conspired
to fix contract prices for their on-call services
at a local hospital. The settlement agreement required
the groups to pledge that they would refrain from
similar activity, but it did not include either
a fine or any payment to the hospital. The hospital
had not accepted the groups’ demands at the
time that the Federal Trade Commission (FTC) began
its investigation.
Like many other anesthesia practices, the two San
Diego groups were finding it very difficult to recruit
doctors, particularly in an environment dominated
by managed care contract prices. Providing trauma
coverage was prohibitive without a hospital stipend:
there might be no patients at all or else too many
uninsured trauma patients. The hospital had asked
the groups to determine how much of a stipend was
necessary. The result was discussion about the amount
among the two “competitors” documented
by unambiguous e-mail messages among other means.
The FTC investigation took place, according to the
attorney for the larger of the two groups, Anesthesia
Service Medical Group (ASMG), after local managed
care organizations had accused ASMG of charging
monopolistic fees. The monopoly charges did not
bear fruit, obviously, reminding us that simply
being a dominant player in a given “market”
is not illegal unless one obtains monopolistic power
through improper means.
Pain Medicine: New Procedures
on the ASC Payment List
While physicians may bill Medicare for their professional
services without regard to the setting in which
they are provided, ambulatory surgical centers (ASCs)
are only paid a facility fee if the procedure is
on the approved list. Without a facility fee to
cover overhead costs, ASCs may prevent anesthesiologists
from performing a given procedure. Eight years after
the Centers for Medicare & Medicaid Services
(CMS) last published the ASC list, the agency issued
an update in the
Federal Register on March
28, 2003. The long-awaited new list contains 288
code additions and 140 deletions. These changes,
which on balance are very favorable to pain medicine,
took effect on July 1.
Of particular interest is the addition to the ASC
list of certain sacroiliac (SI) joint injection
procedures. If provided for analgesia in connection
with arthrography, the SI joint injection generates
a $333 facility fee, but if the injected substance
is simply the dye for the arthrography, there is
no payment to the ASC. To accomplish this distinction,
CMS added “G” code G0260 to the list,
leaving off G0259 (injection for arthrography, deemed
to cost less than $333). The Current Procedural
Terminology (CPT™) code for the SI joint injection,
27096, which covers both variations, is not on the
list.
Also added were 62281 (epidural injection of neurolytic,
cervical/thoracic, $333), 62287 (percutaneous diskectomy,
$1,339) and 62355 (removal of spinal catheter, $446).
Some readers may recall that in 1998 the proposed
ASC rule that was finalized in March of this year
would have deleted a large number of nerve blocks
and neurolytics from the list. Lobbying by ASA and
others persuaded CMS to retain the following codes:
All of the procedures in the table will continue
to be payable to the ASC. The 2003 amount is $333
for all codes except 64630 (pudendal nerve) and
64680 (celiac plexus), for which the payment is
$446.
ASA had worked with the Federated Ambulatory Surgery
Association and various specialty societies to
urge CMS to publish the list with these updates.
The American Society of Interventional Pain Physicians,
which came into existence in order to influence
the contents of the ASC list, played a significant
role.
| Source Material: |
| • Final Rule with Update of Ambulatory
Surgical Center List of Covered Procedures,
68 Fed. Reg. 15268 (March 28, 2003) <www.gpo.gov>. |
HIPAA Privacy
Practice Tip
If there are family members within hearing
range when you begin to talk to a patient
in the holding area (or anywhere), tell
the patient that you are going to discuss
the services that you are about to provide
and ask whether the patient wishes to
talk privately.
This tip resulted from a call to the
Washington Office from an ASA member
whose hospital had received a Health
Insurance Portability and Accountability
Act (HIPAA) complaint about his conduct.
The anesthesiologist had mentioned the
two surgical procedures about to be
performed in his preoperative discussion
with the middle-aged patient. It turned
out that the patient did not mind his
daughter’s hearing about his transurethral
resection of the prostate, but he considered
the disclosure that he was also being
circumcised a HIPAA violation.
One can imagine similar confidentiality
issues arising when a cosmetic procedure
is paired with another elective surgery
(e.g., abdominoplasty with a hysterectomy;
septorhinoplasty) or if a dilation and
curettage is for purposes of terminating
a pregnancy.
The ASA member was concerned that the
mere question whether the patient would
like to have family members excused
might disclose too much information.
The question would not violate the HIPAA
Privacy Rule, but it would be a good
idea to preface it with the statement,
“I ask this of every patient who
isn’t alone.”
Judith Jurin Semo, Esq., suggests, alternatively,
that the anesthesiologist preface the
discussion by telling the patient and
family, “I need to speak with
the patient now and ask that you give
us a moment of privacy.”
With the relative(s) out of earshot,
the anesthesiologist can then ask whether
the patient would like the relative(s)
to hear the discussion. This approach
relieves the patient of any responsibility
for excluding the family members or
for anticipating what the anesthesiologist
may disclose.
You might also consider asking whether
the patient received the HIPAA Notice
of Privacy Practices, especially if
you have a practice or hospital Web
site from which you could invite the
patient who says “no” to
download a copy. (If the patient says
“no,” consider checking
that the hospital is in fact giving
out the notice and obtaining written
acknowledgements of receipt.)
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