Medicare Chiropractic Demonstration Project
Bill Shields, ACR General Counsel, and Tom Hoffman, ACR Associate General Counsel
With this issue of the ACR Bulletin the ACR introduces a column by its in-house attorneys, who will provide information on legal topics of general interest to radiologists as well as responding to members' questions on such topics.
When it enacted the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Congress directed the CMS to conduct a Demonstration of Coverage of Chiropractic Services under Medicare. CMS set up a 2-year demonstration project in the states of Maine and New Mexico, 26 counties in Illinois, 17 counties in Virginia, and 1 county in Iowa. Under the demonstration project, through March 31, 2007, chiropractors will be allowed to bill Medicare Part B for medical, radiology, clinical laboratory, and therapy services related to the treatment of neuromusculoskeletal conditions, if permitted within the state scope of practice for chiropractors and subject to local coverage decisions and national coverage determinations.
In the area of radiology, when permitted by scope-of-practice laws and regulations in these 5 states, chiropractors can receive Medicare payment for taking and interpreting x-rays. They can also order x-rays, CTs, and MRIs, but cannot be paid to take or interpret CTs and MRIs.
So what does this mean to radiologists? It is ACR policy that "there are and should be no ethical or collective impediments to interprofessional association between doctors of chiropractic and medical radiologists"… and that "(I)ndividual choice by a radiologist voluntarily to associate professionally or otherwise cooperate with a doctor of chiropractic should be governed only by legal restrictions, if any, and by the radiologist's personal judgment as to what is in the best interest of a patient or patients" (Res. 3-c, 1987, 1997). In short, it is up to the individual radiologist to decide if, and to what extent, he or she will work with a chiropractors.
It is also important to note that the demonstration project does not relieve radiologists of their legal or ethical obligations to patients. For example, if a chiropractor orders an x-ray, CT, or MRI and the radiologist performing or interpreting the exam discovers something that requires follow-up, to whom does the radiologist report that finding—the chiropractor, the patient's primary care or specialty medical physician, or the patient? Who is responsible for seeing that the patient actually receives appropriate follow-up care? Ensuring proper delivery of the report to the patient's medical physician most likely meets the radiologist's obligations both as to the report and follow-up care. But does delivery to a chiropractor of a report indicating possible lung or bone cancer in the patient ensure appropriate follow-up? How about delivery directly to the patient? Does the radiologist have any direct duty to the patient? Will a state court or medical board determine that a physician-patient relationship existed and the radiologist has abandoned the patient in these circumstances? Should a radiologist be considered the patient's primary physician in situations like this?
Unfortunately, the law in this area is not well settled. Historically, courts have required that there be a physician-patient relationship before they would find any duty extending from the physician to the patient. However, in Stanley v. McCarver, a 2004 case, the Arizona Supreme Court found that, at least in situations in which there is no other medical physician involved, a radiologist may have a duty to communicate exam results directly to the patient. In Stanley, a radiologist read a chest x-ray as part of an employment physical. The radiologist found some areas of concern on the film and delivered his report to the employer per his agreement with the company conducting the physicals. Although the employer's written policy required that the results of the physical examination be reported to the applicant/employee within 72 hours, the applicant was never informed of the radiologist's findings.
Ten months later, the applicant was diagnosed with lung cancer and she sued the radiologist for negligent and improper medical care and failing to timely and adequately diagnose or communicate the abnormality evident on her chest x-rays. While the trial court dismissed the case against the radiologist, finding that there was no physician-patient relationship and therefore no duty to the applicant, the Arizona Court of Appeals reversed and found that the radiologist had a duty to inform the patient.
Upon further appeal, the Arizona Supreme Court held that, although the applicant was not the radiologist's patient, the radiologist nevertheless had a duty of reasonable care to the applicant. The court found that "the absence of a formal physician patient relationship does not necessarily preclude the imposition of a duty of care," and that the radiologist "should have anticipated that the applicant would want to know of the potentially life-threatening condition and that not knowing about it could cause her to forgo timely treatment, and he should have acted with reasonable care in light of that knowledge." The court focused much attention on the fact that the radiologist was the only physician involved and found that it was good public policy to impose a duty to prevent future harm.
While Stanley did not involve any professional other than the radiologist, it suggests how a court might evaluate a case where a chiropractor orders an examination to be performed and interpreted by a radiologist and significant findings are not communicated in a manner that ensures proper follow-up. In such a situation, a court could find that a report properly delivered to the ordering chiropractor is all that is required of the radiologist, as is normally the case when a report is delivered to an ordering medical physician. Conversely, a court might find that the radiologist should not rely on the ordering chiropractor to deal with medical matters that require knowledge and skill outside the scope of chiropractic practice. Following the logic of Stanley that the absence of a formal physician-patient relationship does not necessarily insulate a physician from liability, the court could hold that if a radiologist is the only medical physician involved, there is a duty to ensure communication of the findings to the patient or appropriate follow-up. Other factors to be considered include whether the chiropractor are affiliated with medical physicians or whether the chiropractor ordinarily accepts referrals from, or makes referrals to, medical physicians.
Stepping outside the demonstration project for a moment, what happens when a chiropractor requests that a radiologist order an x-ray to demonstrate a subluxation of the spine? Under normal Medicare rules, a radiologist cannot be reimbursed for exams ordered by a chiropractor. However, in these limited circumstances, Medicare does allow a radiologist to be reimbursed for an x-ray. Because this situation is unusual, radiologists must remember that, like any other ordering physician, they must review the case and obtain sufficient medical information to justify the order. This process should be documented since Medicare includes a review of such orders in its audits. Again, this leaves the radiologist as the only medical physician in the loop. A court could decide that the radiologist bears the legal and ethical responsibility of a physician of record and must ensure communication of test results to the patient and that appropriate follow-up is completed.
So, what is a radiologist to do in these situations? As always, radiologists should conduct a risk assessment and formulate a risk reduction strategy before deciding whether to change their business approach or accept business from new sources. Unless they are contractually obligated, radiologists are free to decide from which sources they will accept referrals or requests. In these unusual situations, radiologists should consider negotiating indemnity or risk allocation as part of any agreements with referring or requesting chiropractors. Radiologists and their practices should inform their insurers of any new business and obtain additional coverage if necessary.
NOTICE: The ACR Legal Office exists to represent the ACR and to provide legal advice to College leadership and the executive director, as well as to handle the day-to-day legal activities of the ACR. The attorneys are not licensed in all jurisdictions and therefore cannot give direct legal advice to or represent chapters, practices, or individual members. The office can and does provide general information of interest to members as well as general guidance on a variety of legal topics. All information is provided with the express understanding that no attorney-client relationship exists and that members, practices, and chapters should always consult their personal or corporate counsel on matters of concern.