Mid-Atlantic Health Law TOPICS

Co-management of patient care has been targeted by the Department of Health and Human Services, Office of Inspector General (OIG), as a potential illegal kickback. Co-management occurs when a surgical patient receives surgical care from one physician and postoperative care from another health care provider. This type of arrangement commonly occurs with cataract and refractive eye surgery.

Specifically, the OIG Fiscal 2003 Work Plan states that the OIG "will determine if relationships between ophthalmologists and optometrists violate anti-kickback laws." The OIG will examine arrangements where optometrists refer surgical cases contingent upon the surgeon's referral of the patient back to the optometrist for post-surgical care so that the optometrist shares in the global surgical fee.

Health care providers contemplating a co-management arrangement should review professional guidelines and applicable laws before entering into such arrangements.

Over the past few years, co-management relationships have received more and more attention, not only by the OIG, but also by state legislatures and various health care professional associations. For example, legislation to limit co-management was introduced, but not passed, in Florida and Missouri in 2001, and the Ohio Board of Optometry's policy regarding co-management can be found at www.state.oh.us/opt/. In addition, the AMA and the American College of Surgeons have expressed disapproval of co-management arrangements that are driven by economic considerations.

A. Academy Guidelines

The American Academy of Ophthalmology (AAO) and the American Society of Refractive & Cataract Surgery (ASCRS) have issued a joint policy statement that includes voluntary guidelines for health care providers considering co-management relationships.

These guidelines are restrictive and endorse co-management as a rarity, as opposed to a common occurrence. Nonetheless, neither the AAO nor the ASCRS have unequivocally stated that co-management is prohibited or illegal.

More specifically, AAO and ASCRS believe that co-management of patients is ethical and appropriate in some circumstances, such as: the surgeon is unavailable to provide postoperative care (due to travel, illness, leave, itinerant surgery in a rural area or surgery performed in a designated physician shortage area); or the patient cannot travel to the surgeon's office because of distance or the development of another illness.

However, AAO and ASCRS believe that when co-management is practiced as an inducement for surgical referrals, or is the result of coercion by the referring practitioner, it is unethical, and may be illegal.

Among other requirements, the AAO/ASCRS guidelines also provide that, even when co-management is appropriate, the transfer of care should not occur unless: it is clinically appropriate; the surgeon has confirmed that the co- manager is legally entitled, and professionally trained, to provide the particular services; and the patient has been reassured that he or she may have access to the surgeon, if necessary, during the postoperative period at no additional cost.

The AAO/ASCRS guidelines also state that the surgeon should inform the patient of the financial implications of co-management, particularly with regard to the patient's payment obligations and the postoperative provider's reimbursement, and that any fees paid to the providers should reflect an appropriate fair market value for the services performed.

AAO and ASCRS also believe that the patient should consent in writing to any prearranged postoperative management plans, and the ASCRS model consent form can be found at www.ASCRS.org/advocacy/comanagmentconsent2.doc.

B. Society for Excellence in Eyecare Policy

Not all eye care associations agree with the AAO/ASCRS stance. The Society for Excellence in Eyecare (SEE), an organization consisting of both ophthalmologists and optometrists, has published its own "Policy Statement on Co-Management".

While SEE supports the AAO/ASCRS position that co-management arrangements should not be driven by financial considerations, and that ophthalmologists should not routinely send all patients back to referring optometrists for postoperative care, SEE believes that patients should control the co-management decision, subject to the surgeon determining that the decision is in the patient's best medical interest. Accordingly, SEE recommends that postoperative care by a referring optometrist should only occur when the patient is fully informed about co-management.

In this context, SEE recommends that the following principles be followed:

1. The final decision for co-management must be made by the patient, subject to agreement by the operating surgeon that it will not compromise the patient's best medical interest. If the patient decides to obtain postoperative care from an eye care professional other than the operating surgeon, the patient should sign a statement confirming that decision.

2. Prior to surgery, the patient must be provided with information about postoperative care requirements, the eye care professionals who are capable of providing the postoperative care, and the credentials of those individuals.

3. The patient must be given the option to return to the operating surgeon for postoperative care and the patient's decision must be honored.

4. Co-management is not appropriate if a complication arises following surgery or if the medical condition of a particular patient requires continued treatment by the operating surgeon.

5. If the patient elects to be co-managed by another eye care professional, the operating surgeon (or another surgeon designated to cover in the absence of the operating surgeon) must be available during the postoperative period for any complications that may arise.

In addition, SEE recommends the following principles in connection with refractive procedures:

6. The amount paid to each provider of services must reflect the appropriate proportional value and intensity of the services provided.

7. If the patient does not make a payment to each individual provider of services, but instead makes a global payment to a single provider or entity, the patient must be informed in writing of the amount attributable to each of the providers of services.

C. Applicable Law

In addition to examining the various guidelines, health care providers should be mindful of the federal anti-kickback statute and the federal physician referral restrictions commonly referred to as "Stark", which generally apply to Medicare and Medicaid patients. Analogous state referral prohibitions, which in Maryland apply to all patients, should also be consulted. In this regard, any payments that flow between co-managing providers should be based on the fair market value of the services rendered and should not be tied to the volume or value of referrals.

Co-management raises professional liability concerns as well. A surgeon referring to another health care provider for postoperative care must select the co-managing provider carefully. In the event that a patient receives substandard care due to such referral, the referring surgeon may be liable for negligence in the selection of the co-managing provider as well as for not properly monitoring the patient's postoperative care.

Ultimately, the referral by an optometrist to a surgeon (and vice-versa) should not be contingent upon the return of the patient for postoperative care, or any economic consideration, but rather, based on what is best for the patient. Moreover, even though there are no definitive rulings yet that declare co-management illegal, practitioners participating in co-management, except where such co-management is for the convenience of the patient as determined by the patient, are taking a regulatory risk, even when the fee paid to the co-managing referral source bears a reasonable relationship to his or her services.