CMS imaging accreditation decision allows continued self-referral

This week CMS published a Federal Register notice announcing its approval of the following national accreditation organizations to accredit suppliers seeking to furnish the technical component of advanced diagnostic imaging services under the Medicare program: the American College of Radiology, the Intersocietal Accreditation Commission, and the Joint Commission. The Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) requires all nonhospital suppliers of advanced imaging services be accredited by organizations designated by the secretary of HHS by Jan. 1, 2012, to qualify to provide services to Medicare beneficiaries.

The notice is available here.

The selection of the ACR and the IAC were both good choices. Both have experience and reasonable accreditation standards. However, I admit to disappointment in the decision of CMS to approve the Joint Commission as an accrediting organization. The Joint Commission has no record of accrediting advanced imaging services. Nor do I believe they have any standards for medical director along the lines CMS states in its notice are required:

“Qualifications and responsibilities of medical directors and supervising physicians, such as training in advanced diagnostic imaging services in a residency program, expertise obtained through experience, or continuing medical education courses.”

In my personal conversations with Joint Commission staff, they informed me that they impose no requirements on who can serve as a medical director. If orthopods, urologists, oncologists, and multispecialty groups can obtain Joint Commission accreditation while designating one of their own physicians—who may have no training or proficiency in imaging—as the medical director, the goal of quality advanced imaging is eroded. Further, and more important, the opportunity for the antimarkup rule’s payment penalties to come into play to retard self-referral is significantly diminished.

My major criticism of the original antimarkup rule was that it imposed no requirements on the physician who “shares the practice” and has general supervision responsibility for the advanced diagnostic tests. One hope for accreditation was that it would make those self-referring physician practices whose medical directors are not qualified face the financial penalties of the antimarkup rules. I’d also hoped that CMS would select accreditation bodies that require qualified physicians to supervise and further require practices to bill using the provider number of the “qualified” supervising physician. Thus, if the qualified supervising physician did not share the practice, the advanced imaging test would be subject to the antimarkup rule’s payment penalties, which are significant. But the antimarkup rule is a toothless tiger if any doctor in the practice, regardless of qualifications, can supervise.

The antimarkup rule can have real teeth that can serve the purpose of improving quality and curtailing unnecessary utilization caused by the profits possible from self-referral. Those teeth can appear if CMS insists that: (1) there be a qualified (proficient) physician to perform the supervisory role for accreditation purposes; and (2) that same physician fill the same role for billing purposes. Medicare should require that the name of the physician who actually performed, or supervised the performance of, a physician service correspond to the physician name and provider identification number appearing on the Medicare 1500 claim form.

CMS must insist on a nexus between the qualified physician who attests to supervising the test for accreditation purposes and the physician who attests to supervising for billing purposes. Otherwise, there is potential fraud in either the accreditation or the billing process. Bottom line, if any member of the practice can supervise and bill for an MRI, CT, or PET scan self-referred to his or her own practice, both the new accreditation requirement and the antimarkup rules have failed.

I so hope that CMS has not created a giant loophole for self-referring physician groups to avoid using board-certified radiologists as their medical directors. I fear it may have.

Mr. Greeson is a partner in the healthcare group of Reed Smith LLP in Falls Church, VA.