Court: Non-radiologists can't refer for in-office imaging

A trial court ruling has Maryland physicians dueling over the scope of the state's self-referral law regarding in-office imaging tests and services.

Mirroring federal "Stark" laws, Maryland prohibits doctors from referring patients to diagnostic entities in which they have a financial stake, except in certain circumstances.

Despite some of those exceptions, though, the Montgomery County Circuit Court said Oct. 18 the 1993 statute strictly bans non-radiologists from referring patients within their practices for CT, MRI and radiation therapy services. The decision affirms similar interpretations made by the Maryland Board of Physicians and the state attorney general in 2006 and 2004, respectively.

The court battle ensued when a group of 14 medical practices challenged the board last December. The plaintiffs -- comprising orthopedic surgeons, urologists and emergency physicians -- are part of the Maryland Patient Care and Access Coalition, which was formed to advocate for the issues at stake in the case. The doctors say state authorities misread the law and several exemptions within it that allow in-office referrals for ancillary services, including imaging tests.

The trial court disagreed, focusing on a seeming conflict between several provisions in the law.

Judge DeLawrence Beard recognized three exemptions when doctors are permitted to self-refer. They are:

• The doctor is referring for in-office ancillary services that meet certain supervision, location and billing requirements.
• Services or tests are provided within the same group practice as the referring doctor.
• Services or tests are directly supervised by the referring doctor.

The court noted, however, that the statute's definition of ancillary services "specifically excludes MRI and CT scans for all doctors except radiologists" -- a delineation that "forecloses the two other exceptions."

The court also determined that letting doctors self-refer for the services under the group practice and direct supervision exceptions would make lawmakers' proscription void.

But some doctors say the ruling goes too far. They worry that it could diminish patient care. The physician plaintiffs are appealing the ruling to the Maryland Court of Special Appeals.

The law was meant to be a balancing act between protecting against overutilization and ensuring that patients get good medical care, said their attorney, Howard R. Rubin, adding that the decision instead renders the statutory exceptions meaningless. "The court read the carve-out of MRI and CT in just one particular provision as an overreaching prohibition in the statute, and this interpretation takes out of the hands of numerous specialties the services that are common practice in the standard of care."

Plaintiffs and other physicians also say the decision constitutes a blanket ban on in-office imaging by non-radiologists, when state and federal policy deem it proper under certain conditions.

Baltimore orthopedic surgeon Andrew N. Pollack, MD, said quality of care and patient convenience are improved when physicians have immediate access to the diagnostic testing.

"[Physicians] can get the information they need in evaluating the patient, whereas radiologists as third parties do not have the same background on the patient's condition," said Dr. Pollack, past president of the Maryland Orthopaedic Assn. and member of the American Academy of Orthopaedic Surgeons, which filed a friend-of-the-court brief in the case. The American Assn. of Neurological Surgeons, American Urological Assn., American College of Surgeons and other specialty medical groups also joined in the brief.

Dr. Pollack said the court ruling could have a significant financial and quality-of-care impact on physicians and patients benefiting from in-office testing in the 14 years since the law's passage. State officials and radiologists, though, say the referral relationships lead to abuse, and lawmakers specifically intended to curb that. Otherwise, "the legislature would have an entire chapter of the law that had virtually no meaning," said Maryland Asst. Attorney General Thomas W. Keech, the medical board's counsel. He said the ruling does nothing to stop medical practices from investing in diagnostic services. "It just stops [doctors] from referring their own patients to it."

Policy concerns in play

Echoing the Medicare Payment Advisory Commission, radiologists point up several public policy concerns.

"Despite the intentions [of Maryland's self-referral law] to disarm this inherent conflict of interest, overutilization still exists, causing the cost of health to rise dramatically and exposing patients to unnecessary medical procedures," states the Maryland Radiological Society in a friend-of-the-court brief. The American College of Radiology supported the state chapter. Both groups declined to comment.

The radiologists also argue that they are better trained to interpret imaging than non-radiologists. The medical board in its opinion cited examples showing patients rarely benefit from getting tests on the same day of an appointment or at the same location as the referring physician.

Meanwhile, as the case heads to the appeals court, Rubin said a conflicting 2005 ruling, though less weighty, could play a part. In that case, the judge found that in-office MRIs were permissible under the direct supervision exception, which was independent from the ancillary services exemption. The verbal, nonbinding decision was not appealed.

American Medical Association policy opposes any and all federal and state legislative and regulatory efforts to repeal in-office ancillary exceptions to physician self-referral laws, including as they apply to imaging services. AMA policy also supports physician disclosure of any financial interests when referring patients.