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Fam Pract Manag. 2004 May;11(5):60.

PAs and the Stark statute

Q

I work in a clinic and hospital that is county-owned and run by a hospital board. Recently the board consulted an attorney about one of our physician assistant’s (PA) contracts. The board stated that they had to change his bonus calculation because the old calculation could be in violation of Stark and anti-kickback legislation. Does this legislation apply differently to PAs than to physicians?

The application of Stark to PAs can be confusing. Although PAs may substitute for physicians in many circumstances under the Medicare reimbursement rules, the Stark statute only pertains to physicians. Therefore, questions regarding PAs, their bonuses, compensation packages and the services they provide should be analyzed under the anti-kickback statute and not Stark. The only Stark implication to billing for PA services is whether they are billed incident to the physician or using the PA’s own provider number.

Medicare overpayments

Q

How far back in time can Medicare go in attempting to recover an alleged overpayment? Is there a statute of limitations?

In general, a Medicare carrier cannot recover an overpayment discovered later than three full calendar years after the year of payment, unless there is evidence that the physician or beneficiary was at fault with respect to the overpayment. For example, suppose a doctor was notified on March 11, 2001, that he has been paid for services provided to a beneficiary, and on Jan. 12, 2005, the carrier determines that the doctor was overpaid for those services. The carrier will not recover the overpayment as long as there is no evidence that the physician was at fault because it was determined subsequent to the third year after notification of the payment. For more details, please see the Medicare Financial Management Manual, Pub. 100-6, Chapter 3 “Overpayments,” under Section 80, “Individual Overpayments Discovered Subsequent to the Third Year.” You may download the PDF at http://www.cms.hhs.gov/manuals/106_financial/fin106c03.pdf.

Handling patients who don’t pay

Q

We have quite a few cash-paying patients with large outstanding balances whom we see once or twice a month. Even with our frequent requests and reminders to pay their balances, they continue to make appointments without paying. We feel the only way they will pay is if we issue a written refusal to see them until they do. Is this OK?

Once physician-patient relationships have been established, physicians are generally under both legal and ethical duties to provide care as long as care is needed. However, as provided in the AMA’s Code of Medical Ethics, there are appropriate circumstances for discharging patients for nonpayment.

First, make and document all reasonable collection efforts, including at least one written warning that the physician-patient relationship will be terminated if payment is not received. Next, if discharge is appropriate, send the patient a written notice via first-class, certified mail. This notice should include a brief explanation for the termination and an offer to continue to provide services for a reasonable period of time (e.g., 30 days unless the patient’s circumstances warrant additional time). Encourage the patient to obtain the services of another physician promptly, and provide resources or recommendations that could help the patient locate another physician, such as a physician referral service. Finally, offer to transfer the patient’s records upon receipt of an appropriate authorization.

Incorrect patient discharge could result in charges of patient abandonment and unprofessional conduct with attendant malpractice claims and licensure actions. If malpractice is proven, punitive damages could be awarded that may not be covered by your insurer. Each patient discharge should be addressed seriously and with consideration of each patient’s circumstances. Physicians should seek the counsel of their local attorneys prior to initiating the discharge.

Referral to a specialist

Q

If I refer a patient to a specialist and the patient has seen another specialist about the same problem or a related problem, can I send a copy of the first specialist’s report to the second specialist with the patient’s prior written authorization? Or does the Health Insurance Portability and Accountability Act (HIPAA) require that the patient ask the first specialist’s office to send the report to the second specialist directly?

There is no need to get a patient’s authorization for information that is shared for treatment. Once you have medical data about a patient that you have used in your treatment of the patient, it is part of your medical records, which you may share as you would any of your records.


* Denotes member of FP Assist, the AAFP’s online clearinghouse for consultants and attorneys.


 

Copyright © 2004 by the American Academy of Family Physicians.
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