Tuesday, February 1, 2011

Potomac Valley Orthopaedic Associates v. Maryland State Board of Physicians (Ct. of Appeals)

Filed: January 24, 2011
Opinion by Judge Joseph F. Murphy, Jr.

Held: The prohibitions against self-referrals contained in the Maryland self-referral law applies to a physician's referral of a patient for a MRI or CT scan that are to be performed another health care provider in the same group practice as the referring physician or on an imaging or scanning machine in which the referring physician or the referring physician's practice has a financial interest.

Facts: This case began when two formal petitions were issued to the Maryland State Board of Physicians by CareFirst BlueCross BlueShield and The Injury Workers' Insurance Fund requesting that the Board issue a ruling on the propriety under the Maryland Self-Referral Law (Md. Health Occ. Code Art. § 1-301, et seq.) of referrals made by physicians for MRI and CT scans when the referring physician has a financial interest in the performance of the scan. On December 20, 2006, the Board issued a declaratory ruling responding to the petitions which stated that the exceptions under Sections 1-302(d)(2), (3) and (4) of the Maryland Self-Referral Law did not apply to a physician's self-referrals of patients for MRI and CT scans that were performed by a practitioner in the referring physician's practice group or on a machine in which the referring physician's practice has a beneficial financial interest. When the Board's declaratory ruling was affirmed by the Circuit Court of Montgomery County pursuant to Md. State Govt. Art. § 10-305, the appellants of the Board's declaratory ruling, which were twelve diversified medical practices, noted an appeal of the Circuit Court's ruling to the Court of Special Appeals. Prior to any briefs being filed with the Court of Special Appeals, the Court of Appeals issued a writ of certiorari on its own initiative to address the issues presented by the Board's declaratory ruling.

Analysis: Maryland Self-Referral Law generally prohibits a health care practitioner from referring a patient to a health care entity in which the health care practitioner owns a beneficial interest, unless the referral is included in explicit exceptions which are contained in the Maryland Self-Referral Law. At issue in the Board's declaratory ruling were exceptions which were set forth in Sections 1-302(d)(2), 1-302(d)(3), and 1-302(d)(4), which the Court and the Board's referred to as the (i) group practice exception, (ii) direct supervision exception, and (iii) in-office ancillary services exception, respectively. The Court agreed with the Board's analysis of the three exceptions and found that (i) the group practice was intended for referrals that transfer professional responsibility for a patient's continued care, permanently or temporarily, from one health care practitioner to another practitioner in the same group practice and does not exempt referrals for specific services or tests that the referring practitioner has already chosen; (ii) the direct supervision exception only created an exception for referrals for services or tests to a health care entity that is outside of the referring practitioner's practice when the referring physician is personally present in the treatment area when the services or tests are performed and either personally provides or directly supervises the services or tests; and (iii) the in-office ancillary services exception did not apply to the referring MRI and CT scans because the definition of in-office ancillary services explicitly excluded MRI, CT and radiation therapy services, except for services provided by a radiologist practice group or a practice or office consisting solely of radiologists.

Conclusion: Relying upon the legislative history of Maryland's Self-Referral Law, prior opinions of the Attorney General that were consistent with the Board's declaratory ruling, and the General Assembly's rejection of numerous bills introduced during the period from 2007 through 2010 that would have changed the Maryland Referral Law to allow physician's to engage in the self-referral practices that were at issue in this case, the Court ultimately held that the Board's declaratory ruling was not premised upon an erroneous conclusion of law and affirmed the ruling of the Circuit Court.

The full opinion is available in pdf.

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