Granting professional courtesy poses risks for urologists

June 12, 2013

The complicated landscape of federal and private insurance, fraud and abuse laws, and anti-kickback statutes have created new context for “professional courtesy,” and physicians should be aware of the applicable rules and regulations that could apply to this once-common practice.

Robert A. Dowling, MDProfessional courtesy-rendering services to a fellow member of a profession, or their family, for no remuneration-is a tradition in medicine, law, and other professions. Some believe the tradition in medicine dates to Hippocrates, and may have arisen to discourage physicians from taking care of their own family members. The complicated landscape of federal and private insurance, fraud and abuse laws, and anti-kickback statutes have created new context for “professional courtesy,” and physicians should be aware of the applicable rules and regulations that could apply to this once-common practice.

The American Medical Association notes in an Ethical Opinion report to its Board of Trustees that while the conduct is “a long tradition,” it is “not an ethical requirement.”

“Physicians should use their own judgment in deciding whether to waive or reduce their fees when treating fellow physicians or their families,” the report states.

Both federal and private insurers have rules, regulations, and restrictions regarding the charges for providing medical care, but there are no specific exceptions to these rules for “professional courtesy.” It should be noted that many of the considerations discussed in the specific context of professional courtesy also extend to patients in general.

 

Waiving copays risky

The extension of professional courtesy may take many forms. One common practice has been to simply “accept insurance” and waive copays and other patient responsibilities. Federal and private insurers specifically ban the waiver of copays. Insurers feel that waiving copays will encourage patients to seek care they might not otherwise need and drive up health care costs, resulting in higher charges in general.

As patients-including fellow physicians-move into high-deductible private health insurance plans, “accepting insurance only” may not generate any direct payment from the insurance company for services rendered in an office and could expose the physician to allegations of fraud if a claim is filed for the charges and no patient responsibility is collected. Both Medicare and private insurers compel providers to make efforts to collect copays, coinsurance, and deductibles, and “accepting insurance only” is probably the riskiest way to extend professional courtesy.

If patient responsibility is forgiven in cases where the patient cannot afford to pay, it is recommended that this be documented in the practice management system. Physicians may wish to avoid noting “insurance only” in medical records, superbills, and insurance claims.

Another possible method to give professional courtesy is to simply discount the fee that is charged to the patient. In the past, it was common to see a “20% professional discount” granted to physicians or even employees of the local hospital-a gesture that may have been effective in building relationships or even “giving back to the community.” In practice, though, this method may carry more risk than reward: A discount must be applied to the entire charge, not just the patient responsibility. For example, if the normal charge for an office visit is $100 and a 20% discount is applied, the new total charge would be $80. As above, the physician would be obligated to collect the patient’s responsibility separately.

Furthermore, since many policies require a flat copay for an office visit, a “20% discount” may only benefit the insurance company. Finally, in an era of sophisticated data analysis, a payer may notice a pattern of discounted fees and call into question the physician’s customary charges, or even invoke “lesser of” language in determining its payments.

A final method used by many physicians to grant professional courtesy is simply not to charge for the service at all. This practice of “no charge” is generally permitted as long as it is not part of a wider scheme to defraud an insurance company or the federal government. It is important to keep medical records and not inadvertently “hide” medical information that might be used by an insurance company in the future.

 

Courtesy could violate kickback laws

Perhaps the most compelling argument used to discourage providing professional courtesy is the existence of federal and state laws that prohibit kickbacks or any inducement to a physician to refer patients to another physician for care. Because urologists typically treat patients under the Medicare program, they may be vulnerable to an interpretation that treats professional courtesy extended to a “referring physician” as such an inducement. It is probably not unusual for primary care physicians to refer themselves to the same urologist to whom they refer their other patients-including Medicare patients. This situation can create the appearance of an inducement, even when not intended.

Moreover, the primary care physician may not fully understand or even be exposed to the same risk incurred by the treating specialist, since they (primary care physicians) do not typically see high volumes of referrals from other physicians. Thus, urologists may find themselves trapped in an awkward situation-weighing the benefit of professional courtesy against the risk of financial or even criminal penalties. Some might include the risk of potentially offending a referral source in the calculation.

According to the AMA’s Ethical Opinion, “Extensive research has failed to uncover any instance where a physician has been prosecuted by either the OIG [Office of the Inspector General] or the DOJ [Department of Justice] for fraud or abuse based on the extension of professional courtesy.” While this may provide comfort to some physicians concerned about their risks for prosecution, it provides no precedent or guidance for what the OIG or DOJ might do in the future.

Furthermore, urologist members of large groups (one entity in the eye of the payer) who extend professional courtesy may expose the entire group to the risk-real or perceived.

Bottom line: Urologists should familiarize themselves with the risks and rewards of extending professional courtesy, and employ a consistent policy for patients who are physicians, family of physicians, or other members of the health care profession.UT