November 2004 Volume 68	Number 11

Another Way to Attract the Attention of the U.S. Attorney

Karin Bierstein, J.D.
Assistant Director of Governmental Affairs (Regulatory)


n anesthesiologist from Las Vegas, Nevada, is the target of a criminal fraud and abuse action brought by the Nevada United States Attorney. The prosecutor filed the False Claims Act complaint last June. The earliest that the case might go to trial would be in summer 2005, so it will be many months before we learn whether the charges are valid (and we will only learn that if the case does not settle or is dismissed on procedural grounds). The first item in this column’s collection of developments, therefore, uses only the allegations in the complaint to remind ASA members about a particular Medicare billing pitfall.

Consultations, like any other medical service, must be medically necessary to be billable to Medicare. They also must be performed before they are billed. Unlike the majority of evaluation and management services (e.g., visits), they must be requested by another physician. The complaint asserts that the defendant’s bills for consultations — several hundred thousand dollars’ worth over a five-year period — failed to satisfy these three conditions. It appears that the defendant anesthesiologist may have billed a consultation for most of the procedures he performed.

What alerted the authorities to this obviously wrongful attempt to maximize reimbursement was the sophisticated data-mining system that Medicare’s Program Safeguard Contractors are now using. Any time a physician submits claims for a particular service with a frequency that grossly exceeds the average for the specialty, that physician risks triggering an audit or an investigation into the reasons. Anesthesiologists who bill for consultations should be familiar with the requirements described in Chapter 12, Physicians/Nonphysician Practitioners, of the Medicare Claims Processing Manual. The section on consultations begins with the following summary:

Specifically, a consultation is distinguished from a visit because it is provided by a physician whose opinion or advice regarding evaluation and/or management of a specific problem is requested by another physician or other appropriate source (unless it is a patient-generated confirmatory consultation);

A request for a consultation from an appropriate source and the need for consultation must be documented in the patient’s medical record; and

After the consultation is provided, the consultant prepares a written report of his/her findings, which is provided to the referring physician.

Source Material:

• “Consultations,” Chapter 12, Medicare Claims Processing Manual, <www.ASAhq.org/Newsletters/2004/11_04/Nov04Ch12.pdf>. The entire online manual is accessible through <www.cms.hhs.gov/manuals/104_claims/clm104index.asp>.

Credentialing by Third-Party Payers

n often overlooked provision in the standards of the National Committee on Quality Assurance (NCQA), which accredits health plans, offers anesthesiologists and other hospital-based providers the opportunity to eliminate the time-consuming process of individual provider credentialing review. The NCQA allows providers receiving “referrals” exclusively on the basis of their hospital affiliation to be credentialed under a group agreement in which the group relies on hospital credentialing review. In most cases, these provisions would not apply to pain management consultants. 

According to ASA Vice-President for Professional Affairs Alexander A. Hannenberg, M.D., most practices have experienced significant delays in payment for services rendered by new members of the group while health plans process individual applications. Under NCQA standards, this process is not necessary. ASA has reminded the major health plans of this provision and suggested that they review their internal procedures with the NCQA standards in mind.

Where health plans do credential physicians individually, and where there are questions about quality and growth in volume of services, a trend on the horizon is performance-based credentialing. Highmark, Inc., a Blue Cross/Blue Shield licensee based in Pennsylvania, has launched a program to control the explosion of certain advanced-imaging studies. The program’s first phase began in July 2004 with rigorous recredentialing standards and initial credentialing requirements that radiologists must meet in order to be paid for imaging services performed outside the hospital. Highmark has contracted out implementation of the program to a national radiology management company.

Interestingly the Pennsylvania Radiological Society supports the credentialing standards, which were developed in consultation with practicing physicians. There has been concern about poor-quality imaging and profit-driven patient care. Freestanding imaging centers are growing in number and there is little other oversight of the technicians performing the studies and the physicians interpreting them. Among the requirements that the Society approves are those that improve radiation safety and those that mandate that the technician who takes the films is qualified. The Society is less happy with the requirement that imaging centers stay open for four hours on Saturdays, citing hardship in rural areas.

Payments for magnetic resonance imaging, positron emission tomography scans and computed tomography scans have been growing by 20 percent per year, and Highmark is spending more than $500 million on these services for its members. In other states, the growth rate is as high as 50 percent, and other Blue Cross/Blue Shield plans are very interested in the Highmark program.

Note that the program only affects services performed in nonhospital facilities. The number of freestanding surgery centers — and perhaps imaging centers — also are mushrooming in many places, and some anesthesiologists may find themselves affected by performance-based privileging in the not-too-distant future. Although anesthesiologists providing anesthesia services do not control the volume of services, and ASA hopes that all the anesthetics performed are medically necessary and of high quality, our members could be affected indirectly by restraints placed upon the surgeon, radiologist or endoscopist. Payer enforcement of qualification requirements for nonphysician anesthesia providers might influence staffing patterns. Pain medicine specialists do determine the number of interventional and ancillary services that they perform or order, and they, too, should keep an eye on developments.

An introduction to pay-for-performance concepts will be among the presentations at the 2005 Conference on Practice Management, February 4-6, in San Francisco, California.

Latest on California Medical Staff Self-Governance Battle

he October 2004 issue of the NEWSLETTER described the settlement that ended litigation over medical staff governance and autonomy in Ventura County, California. The principles established in the settlement agreement between Community Memorial Hospital and its medical staff have just been enacted into law.

The California Business and Professions Code contains a new section defining the medical staff’s rights and duties to:

• Propose, develop, adopt and amend medical staff bylaws, rules and regulations. The hospital governing body’s approval is required, but it may not be unreasonably withheld.

• Establish and enforce criteria and standards for medical staff membership and privileges.

• Determine systems and standards to oversee and manage quality assurance, utilization review, infection control and other medical staff functions.

• Select and remove medical staff officers.

• Assess medical staff dues and use the dues fund for medical staff purposes in its sole discretion.

• Engage legal counsel at its own expense.

The California Medical Association’s (CMA’s) two-pronged approach — lobbying for this legislation while it supported the litigation — was thus successful in both arenas. CMA hopes that the new law will serve as a model for other states to assure the self-governance rights of their medical staffs.

ASA 2005 Conference on Practice Management
FEBRUARY 4-6, 2005 • GRAND HYATT SAN FRANCISCO ON UNION SQUARE

ttendees at the ASA 2005 Conference on Practice Management on February 4-6 will be offered a typically varied and excellent program. Participants will learn to negotiate more effectively using current hospital contracting data, understand more about “pay-for-performance,” be able to find ways to reduce their medical liability costs, know how to appeal underpayments and will be offered information on many other issues.

In addition to lectures and panel discussions, the conference offers breakout sessions that allow attendees to select areas of greatest personal interest. The conference also offers discussion tables where attendees can discuss one particular topic with a knowledgeable leader in groups of five to 20 people. Breakfast, lunch and break times are structured to facilitate networking among attendees and speakers.

To register for the 2005 Conference on Practice Management, logon to <www.ASAhq.org>.