Health Law Daily Physician must perform certain oncology radiation services to justify Medicare billing
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Thursday, October 22, 2020

Physician must perform certain oncology radiation services to justify Medicare billing

By Jeffrey H. Brochin, J.D.

The court found that no statutory or regulatory requirement directed that oncology radiation services be supervised by a radiation oncologist, so supervision by any qualified physician was sufficient for billing to Medicare.

A federal district court in Kentucky has granted in part and denied in part the motions to dismiss filed by Radiation Therapy Services, P.S.C. (RTS) in a False Claims Act (FCA) (31 U.S.C. §3729 et seq) lawsuit filed by a radiation oncologist (relator) who was formerly employed at the facility. The relator adequately alleged that some of the services were not purely technical, but rather were required to be actually performed by a physician. However, there was no requirement that the services be specifically supervised by a radiation oncologist, and any qualified physician could supervise the therapy that was billed to Medicare (U.S. ex rel O’Laughlin v. Radiation Therapy Services, P.S.C., October 20, 2020, Bunning, D.).

Alleged fraudulent misrepresentations. The relator worked as a radiation oncologist with RTS from July 2012 through October 2015. He alleged in his qui tam FCA complaint that RTS presented false claims for reimbursement that certified either expressly or by implication that he had provided, or supervised, the radiation oncology services that were billed to Medicare and Medicaid when in fact, he did not provide or supervise the cited services. He further alleged that the services were not delegated to a physician qualified to perform the radiation oncology services. The RTS moved to dismiss the complaint for failure to state a cause of action, however, for the reasons stated below, the court granted in part and denied in part the motion to dismiss.

Performance by radiation oncologist. The court first examined the issue of whether the Medicare statute or regulations in fact required that only a radiation oncologist actually perform the radiation services. RTS argued that the services were merely "technical" and that they need not be provided by a physician, let alone by a physician qualified to perform radiation oncology services. In support of that argument, RTS pointed to various provisions in the Medicare Benefit Policy Manual (MBPM), which it said contemplated the performance of radiation therapy services by technical staff with only physician supervision required, and that therefore, the relator’s claim that they violated the FCA by falsely certifying that the relator or another radiation oncologist performedcertain radiation services must fail as a matter of law.

The court disagreed, noting that RTS’ argument that radiation services in general are purely technical, was not responsive to the relator’s specific allegations. Furthermore, RTS did not challenge the relator’s assertion that certain services were required to have been performed by a physician who was specifically qualified to perform radiation oncologyservices, instead focusing on the issue of whether Medicare regulations require performance by a physician for radiation services at all. Accordingly, the court concluded that the relator’s Amended Complaint would survive to the extent it alleged RTS falsely certified that certain radiation oncology services (denoting physician performance) were performed by relator or another radiation oncologist.

Supervision of services issue. The court next reviewed the issue of whether a radiation oncologist was required to supervise radiation therapy services. The court found that the relator did not identify a regulation or statute requiring that a radiation oncologist—as opposed to another type of physician—supervise the services. The Amended Complaint stated that "the administration of a specific type of radiation therapy requires a specific level of supervisory . . . care by a qualified physician, that is, by a radiation Oncologist or other "qualified radiation oncology physician." However, no statute or regulation was cited for that proposition. Although the relator correctly asserted—and RTS conceded—that the MBPM requires "direct supervision" by a physician of the radiation oncology services, the policy does not require that the supervising physician himself or herself be a radiation oncologist in particular. rather, the MBPM only requires direct personal supervision of a physician. The policy further provides that the physician need not be in the same room, but must be in the area and immediately available to provide assistance and direction throughout the time the procedure is being performed.

Therefore, the court ruled that the relator failed to state a claim for relief based on alleged false certification that a radiation oncologist supervised certain radiation oncology services, and that claim was accordingly dismissed.

The case is No.: 0:16-cv-00148-DLB-EBA.

Attorneys: Carrie B. Pond, U.S. Attorney's Office, for the United States. Jake Eldemire Smith (Wyatt, Tarrant & Combs, LLP) for Radiation Therapy Services, P.S.C.

Companies: Radiation Therapy Services, P.S.C.

MainStory: TopStory CMSNews FCANews FraudNews ProgramIntegrityNews QuiTamNews

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