April 23, 2019

April 23, 2019

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April 22, 2019

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Obama Administration Aims to Restrict Physician Self-Referrals for Certain In-Office Services in Proposed Budget

In its recently unveiled budget proposal for fiscal year 2014, the Obama administration has proposed saving billions in federal expenditures by tightening restrictions on certain services for which physicians can self-refer patients and receive government payment.

Under current federal law, a physician cannot make a referral to an entity for the furnishing of “designated health services” payable by government-funded health programs, such as Medicare, if the physician has a financial relationship with the entity. Correspondingly, this law—the “Stark Law”—also prohibits the entity receiving the referral from submitting a claim for payment for such services. Several exceptions, however, punctuate these prohibitions, including the “in-office ancillary services” exception, which shields referrals within physician practice groups for designated health services that meet specified criteria regarding the individual who furnishes the services, the location where the individual furnishes the services, and the party that bills for the services.

In an overview of the President’s 2014 budget plan for health care spending, the U.S. Department of Health and Human Services (HHS) notes that there are “many appropriate uses” for the in-office ancillary services exception, which the agency describes as designed to allow physicians to “self-refer quick turnaround services.” But, the agency cautions, some physicians have relied on the exception for certain services, such as advanced imaging and outpatient therapy that “are rarely performed on the same day as the related office visit.” Additionally, HHS claims, evidence suggests that the exception may have spurred “overutilization and rapid growth” of these services.

In light of these findings, the Obama administration has recommended excluding radiation therapy, therapy services (such as physical therapy and occupational therapy), and advanced imaging (such as CT scans and MRIs) from the in-office ancillary exception to encourage “more appropriate use of select services,” as HHS explains in the health spending overview. Notably, however, the administration would not extend this exclusion to “cases where a practice meets certain accountability standards,” which the HHS Secretary would have the authority to define, presumably before the exclusion would take effect in calendar year 2015 as the administration intends. Amending the Stark Law exception in this fashion would yield $6.1 billion in federal savings over 10 years, according to the administration.

Providers of the in-office services identified by the Obama administration should follow closely to see if the administration’s suggested change to the Stark Law makes it into the final budget and, if so, how the HHS Secretary ultimately defines the “accountability standards” that could make the difference between staying within the boundaries of the law and falling outside of them.

© 2019 BARNES & THORNBURG LLP

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About this Author

Gayland Hethcoat, Health care Attorney, Barnes Thornburg, Law firm
Staff Attorney

Gayland O. Hethcoat II is a staff attorney in Barnes & Thornburg LLP’s Chicago, Ill., office and a member of the Health Care Department. Prior to joining Barnes & Thornburg, Mr. Hethcoat served as a law clerk for McDermott Will & Emery in Miami, Fla., where he focused on matters affecting health insurers and care providers. Mr. Hethcoat also served as a judicial intern for the Honorable Leslie B. Rothenberg of the Florida Third District Court of Appeal.

312-214-8319
Laura D. Seng, Barnes Thornburg Law Firm, South Bend, Healthcare Attorney
Partner

Laura Seng is a partner in Barnes & Thornburg LLP’s South Bend, Indiana, office and is the chair of firm's national Healthcare Department. Ms. Seng concentrates her practice in regulatory compliance, transactional matters and medical-legal business issues for healthcare entities and individual providers. She is listed as a notable healthcare lawyer by Best Lawyers in America® and was recognized by her peers in Indiana Super Lawyers® as a “Rising Star” in healthcare law.  

Ms. Seng represents hospitals, physicians, multi-specialty clinics and healthcare organizations, as well as laboratories, pharmacies and other healthcare providers. She advises clients on healthcare reform implications and regulatory issues, including the Stark law and Anti-Kickback statute, Medicare/Medicaid billing and reimbursement, fraud and abuse laws, and HIPAA compliance. Ms. Seng also conducts internal investigations for corporate compliance matters and defends clients in governmental investigations and whistleblower actions related to Medicare/Medicaid and the False Claims Act.  In addition, Ms. Seng advises hospitals, healthcare entities and individual practitioners with respect to professional service agreements, creation of strategic alliances, hospital and provider mergers and acquisitions, corporate and regulatory compliance, professional licensure actions, state and federal agency administrative actions, and general healthcare and corporate governance matters.
 

574-237-1129