Areas of ophthalmic practice affected by comanagement include (1) cataract surgery and the use of the Current Procedural Terminology 54/55 modifiers, (2) refractive surgery, and (3) perioperative care within managed care organizations. Comanagement is a delegation of patient care services related to surgery in which the surgeon arranges for certain aspects of preoperative or postoperative care to be delivered by another health care provider. These arrangements per se are not unethical; however, ethical and legal concerns arise when fees are divided between providers or when referral networks are established.
Cataract Comanagement: 54/55 Modifiers Issue
The use of these modifiers is almost exclusively (90%) for eye care. They are used in 15% of cataract surgery cases, 70% of which involve postoperative management by an optometrist. In some states, local medical review policies, which are the coverage policies enacted by local Medicare carriers that serve as local fiscal agents of the Centers for Medicare and Medicaid Services, allow for the use of these modifiers only in specific situations.
Antikickback and Fee-Splitting Violations
Comanagement arrangements may violate the federal antikickback statute if such arrangements are a form of remuneration intended to induce referrals of federal health care program business. Parties involved in comanagement arrangements may be violating the antikickback statute even if they are following the Centers for Medicare and Medicaid Services' guidelines for using the 54/55 modifiers. A safe harbor issued by the Office of Inspector General states such arrangements will not be considered illegal remuneration so long as:
2. The service for which the referral is made is not within the medical expertise of the referring individual or entity, but is within the special expertise of the other party receiving the referral.
3. The parties receive no payment from each other for the referral and do not share or split a global fee from any federal health care program in connection with the referred patient.
4. Unless both parties belong to the same group practice as defined in paragraph (p) of this section, the only exchange of value between the parties is the remuneration the parties receive directly from third-party payors or the patient compensating the parties for the services they each have furnished to the patient.1
Number three of this safe harbor explicitly excludes arrangements in which the parties share or split a global fee from a federal health care program. The Office of the Inspector General excluded these arrangements because of concerns regarding the “potential for abuse where the parties might ‘juggle' the global fee between them in ways that could lead to more remuneration than merely referrals being exchanged between them.”1
Therefore, safe harbor protection is specifically denied for arrangements in which the 54/55 modifiers are used. This does not mean such arrangements are violations of the antikickback statute, but that the Office of the Inspector General may choose to review such arrangements on a case-by-case basis. Although an arrangement may not violate the federal antikickback statute, it may violate a similar antikickback provision of state law. These state laws do not limit the prohibition of services paid for by federal health care programs but prohibit the relationship among a broader range of payers.2 An additional consideration is state fee-splitting laws. Many states prohibit physicians from splitting fees with anyone who is not in their practice group. Violations of state prohibitions may result in punitive action by the state's medical board.3
Business and Ethical Issues
Another issue is whether ophthalmologists are in favor of these newer forms of comanagement. In his 1999 presidential address4 to the AAO, William S. Tasman, MD, stated: “Only 17% [of] Academy membership in one survey endorsed co-management . . . [T]here is a silent majority here that is not being heard.” This is similar to Gertrude Himmelfarb's observation in her book One Nation, Two Cultures that the most noticed in this country may not represent the majority.5 Accepting any market approach to medicine may seem laudatory, but health care does not fit the consumer model and benefits from a fiduciary relationship.
Patient Versus Consumer Benefits
An ethical analysis could be based on what is of benefit to the patient versus what is of benefit to the consumer. Investigators who approached an analysis of this issue from a consumer benefit perspective note that, to acquire an adequate appreciation of medical ethics in modern times, the role of the profit motive in the mass marketing of health care must be considered. To do so effectively, these investigators presupposed that not all resources and services are fully state owned, that decisions to tax or transfer resources should be made openly and after public discussion, that the burden of proof is on the state to show that it is morally justified in interfering with those who wish to associate and collaborate together, that freedom of choice is valued more highly than equality of outcome, and that commitments to beneficence are limited, as reflected by the absence of a constitutional right to receive welfare services. Such criteria, when considered as benchmarks for ethical review, most broadly define the character and moral assumptions of American health care policy.6
Several professional organizations have attempted to clarify the role of the surgeon. The joint position statement of the AAO and the American Society of Cataract and Refractive Surgery pointedly notes that “the operating surgeon has the responsibility for the postoperative care and disapproving if economic considerations drive the decision to transfer the care of a patient following surgery.”7 Hoskins further clarifies the problem from a professional point of view when he states that “We do not own the patient, and we have no right to sell him or her to another physician.”8 The issue of comanagement is also a managed care concern and was addressed by The American College of Surgeons.9 Again, the concern is perioperative care will be assigned to the least qualified provider and the surgeon (as a technician) will be limited to the operating room.
Legal Considerations
The AAO policy statement entitled “An Ophthalmolog-ist's Duties Concerning Postoperative Care” notes a court case in which the decision stated: “The surgeon's obligation to the patient is not discharged with the conclusion of a successful operation.”10 However, the dichotomy necessitated when trying to mix ethics and a code of ethics that does not violate the law is evident in the AAO advisory opinion “Employment and Referral Relationships Between Ophthalmologists and Other Health Care Providers.”11
Succinctly, the advisory opinion does not attempt to preclude an Academy member from referring patients to a nonophthalmologic physician for those aspects of postoperative care that are not within the unique competence of the ophthalmologist. However, the opinion does note that the person to whom the patient is referred must be a person legally entitled and professionally trained, experienced, and qualified to provide such services.
The specific wording of the advisory opinion pointedly leaves room for broad interpretation but was necessary to preclude accusations of restraint of trade.Liability Considerations
One researcher proposed there is a “theory of negligent referral” that may be applicable and perhaps raises the level of concern for medical malpractice liability risk.12 An applicable federal court case13 held a general practitioner liable under general negligence principles for referring a patient to a specialist when the practitioner knew or had reason to know the specialist was incompetent.14 Similarly, if an ophthalmologist negligently selects a physician or nonphysician comanager, or otherwise does not follow the accepted standards for preoperative and postoperative patient care, the ophthalmologist could be held liable for a patient's bad outcome.
Liability under the theory of patient abandonment may also be applicable to comanagement arrangements. “Abandonment of a patient is a tortuous act,” states one court opinion.15 Another states that, in the absence of an emergency or other special circumstance where a physician should know a condition exists that requires further medical attention to prevent injurious consequences, the physician must facilitate such attention until the condition is resolved or until the physician-patient relationship is properly terminated.15
If an ophthalmologist performs surgery on a patient and assigns necessary follow-up care to someone who is incompetent to perform postoperative care, the ophthalmologist could be held liable for abandoning the patient.
The Role of Education
A dilemma continues with the Association of University Professors of Ophthalmology's comanagement policy statement16 because it fails to clarify the role of educational programs that train both ophthalmologists and optometrists.
Should ophthalmic residency programs serve only ophthalmology, or do they have a responsibility to serve society? If the latter, then one might justify helping optometrists become better trained to improve patient care. Having a program that teaches the postoperative management of any surgical procedure to an audience with disparate educational backgrounds and with different intentions may be construed by some as disingenuous. There have always been medical conferences with physicians of medicine and other professionals (eg, registered nurses). However, the intent was not the evolution of networks resulting in financial comanagement relationships.
Do we ignore the ends and thereby justify the means? The AAO Council Advisory Recommendation 99-22 (“Academic Medical Center Sponsorship of Co-Manage-ment Education”) specifies that, in providing “Co-management workshops for eye care providers, particularly optometrists, teaching institutions are sending a harmful message—the wrong message—to the next generation of ophthalmologists that routine patient co-management is an appropriate and acceptable practice for the profession.”17
Ethics and Medical Practice
Rules such as the AAO Code of Ethics may not always obtain the desired effect because they are aspirational and not limited to actual law. However, as one researcher aptly states: “The legal system appears to be wholly at sea in knowing how to evaluate compensation arrangements aimed ostensibly at countering moral hazard.”18
Regarding the profession of medicine, it has been noted that, “The loss of any noncapitalistic values within the profession . . . has eroded the distinction between professionals and any other occupation and . . . this loss of professionalism . . . creates workers, no matter how skilled, who act as technicians or functionaries.”19
SUMMARY
What model does the profession of medicine and our society want? Do we pursue the entrepreneurial model or an aspirational model?
The resolution of the ethical slippery slope involved in the justification of comanagement may have significant consequences for patient relationships, colleagues, and society. This article merely presents some ethical concerns intended to lead to ethical analysis, which should create more clear and consistent determinations intended to affect behavior. Different people will come to different conclusions. The recent iterations of comanagement present several ethical dilemmas to which there are several right answers. Any ethical approach should ultimately result in a good outcome for the patient, the profession, and our society.
Samuel Packer, MD, practices general ophthalmology at the North Shore University Hospital in Manhasset, New York. Dr. Packer may be reached at (516) 465-8400; spacker@nshs.edu.James Lynch, JD, is a health lawyer with Dorsey & Whitney of Minneapolis. Attorney Lynch may be reached at (612) 340-8763; lynch.jim@dorseylaw.com.
Material modified and reprinted with permission from Arch Ophthal 2002;120:71-76. Copyright © 2002 by the American Medical Association.
1. Tully W. Bradley. Federal Anti-Kickback Law (CFR §1001.952[s]). BNA's Health Law Bus Series, No. 1500,1500.05.C.14: 1048-1500.
2. Minn Stat §147.091; Fla Stat Ann §817.505, 455.237; Mich Comp Laws §752.1001, 752.1011; Utah Code Ann §26-20-04; ND Cent Code §43-17-31.
3. Wis Stat Ann §448.08(1), Fla Stat Ann §817.505, Minn Stat §147.091, Idaho Code §54-1814, Nev Rev Stat §630.305.
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13. Allison v Patel, 438 SE2d 920, 927 (Ga App 1993).
14. Estate of Jeannette Tranor v Bloomsburg Hospital, 60 F Supp2d 412 (MD Pa 1999).
15. Church v Perales, 39 SW 3d 149, 164 (Tenn Ct App 2000).
16. AUPO Co-Management Policy. San Francisco: Association of University Professors of Ophthalmology; 2000.
17. Advisory Opinion 99-22. San Francisco, Calif: American Academy of Ophthalmology; 1999:1.
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19. Krause EA. The Death of the Guilds: Professions, States, and the Advances of Capitalism, 1930 to the Present. New Haven, Conn: Yale University Press; 1996: 281.
