Healthcare Reform Law Amends Stark to Create a Notice Requirement for Physicians Providing Certain In-House Imaging Services, Effective Immediately
By: DAVID M. GLASER & KATHERINE B. ILTEN
April 1, 2010
The Patient Protection and Affordable Care Act of 2010 contains many provisions that affect physicians. One that is effective immediately is the requirement that physicians who provide certain imaging services within their offices and rely on the in-office ancillary services exception to the federal physician self-referral law (“Stark”) must give written notice to patients that they may receive the imaging services from any entity the patients choose. The physician must also provide a “written list of suppliers” in the area who furnish the particular imaging services.
Here are some important points physicians need to know about this new notice requirement:
- The requirement only applies to certain radiology services: “magnetic resonance imaging, computed tomography, positron emission tomography,” and other radiology services later designated by the Secretary of Health and Human Services in regulations. It also does not apply to plain x-ray, nor any other designated health services (“DHS”), like physical therapy or clinical laboratory services.
- Physicians need only provide a list of other “suppliers” of the radiology services. Medicare defines the term ”suppliers” as physicians or similar entities, including independent diagnostic testing facilities (IDTFs), but excluding hospitals, which are considered ”providers” for Medicare purposes. Therefore, physicians do not need to include hospitals on the written list of imaging suppliers. (We would recommend that you avoid using the word “provider” in the notice if you plan to omit hospitals from the list.)
- The law does not require that the list be exhaustive, nor does it establish a required length. In short, if you have a list of other physician practices and IDTFs that provide the particular imaging services, such a list should be sufficient to comply with the new law.
- The notice must be given “at the time of referral” and must state that the patient is free to go to any other organization for the imaging services. The notice certainly could state that the patient should make sure that the other organization is covered by the patient’s insurance, but such a statement is not required.
- The notice requirement applies only to Medicare and Medicaid patients. (The requirement is now part of the in-office ancillary services exception to Stark, which applies only to Medicare and Medicaid patients.) Given that the cost of providing the notice is relatively low compared to the significant administrative and monetary penalties for violating Stark, we suggest providing the notice to all patients to avoid any administrative errors that result in a Medicare or Medicaid patient not receiving the notice. However, the law does not require you to provide the notice to all patients.
- Physicians who rely on the “rural provider” ownership exception to Stark and do not need to rely on the in-office ancillary services exception are not subject to the notice requirement.
Some states already require physicians to provide similar notices, so you should be certain to understand your obligations under any applicable state laws. The new notice requirement is only one of a number of provisions in the recent healthcare reform legislation that affect physicians.
We discussed in detail how the legislation will affect clinics and hospitals in our webinar in April 2010. Click here to purchase a CD of the webinar.