Recent changes in the clinical and economic landscape -- most notably the popularity of LASIK -- have brought the issue of co-management of surgical care with optometrists back to the forefront. And, as you've probably experienced, discussion isn't always rational or civil.

Opponents argue that co-management is nothing more than illegal fee splitting and an undeserved boon to O.D.s, who hold referrals hostage unless surgeons agree to co-manage. They maintain that it's a threat to quality care and shouldn't be done. Proponents say those who oppose co-management are whiners who don't know how to practice medicine efficiently.

On one hand, dismissing a practice style that may be both efficient and, handled properly, legal and ethical could be a mistake. On the other hand, any ophthalmologist currently co-managing or thinking about co-managing refractive surgery care must contemplate several legal and ethical concerns before entering into such an arrangement.

In this article, we'll explain why this topic has once again become so heated and list the factors you must consider as you wrestle with how to proceed in your practice.

How we arrived at this point

By co-management we mean allowing an optometrist outside of your practice to see a patient preoperatively and then having that same optometrist provide postoperative care. Historically, co-management with independent optometrists wasn't a likely arrangement until two things happened:

• The scope of optometric licenses began to expand so that co-management could legally take place.

• Medicare recognized optometrists as "physicians" for purposes of reimbursement.

The former was actually in place in many jurisdictions for quite a while, but the latter wasn't. Once the financial piece fell into place, and billing for cataract surgery could be accomplished using a 55 modifier, the reimbursement could be split between the surgeon (80%) and the co-managing O.D. (20%).

This new arrangement was a boon to optometrists. In many communities they were the eyecare point of entry into the healthcare system and controlled referrals for medical-surgical intervention by ophthalmologists. Many an ophthalmologist can recount having received "the call," in which a good referral source seemed to imply that unless the ophthalmologist agreed to co-manage cataract referrals, he'd send patients elsewhere. In some cases, this co-management was little more than a referral to the ophthalmologist, who did all of the work, followed by the optometrist simply billing for the referral.

Of course, this kind of tactic was met with resistance and considered tantamount to illegal fee splitting (which it would be under the scenario just described!). Even though some saw this as an opportunity to lock up referrals, many looked at co-management skeptically.

Enter, managed care

However, heavy managed care penetration and capitation caused a significant number of ophthalmologists to change their attitude. Suddenly, the emphasis was on efficiency and having care delivered by the "lowest-cost provider." It was efficient for practices employing their own optometrists to allow those optometrists to provide routine pre-op and post-op care. The ophthalmologist was then able to concentrate on what he did best -- and get better at it.

Solo or small group practices that didn't include optometrists could co-manage with independents to achieve the same level of efficiency. So, the controversy over co-management fizzled somewhat, as fears of deeper Medicare cuts and managed care took center stage.

But the debate has risen anew, fueled by the public's surging interest in refractive surgery.

Where this leaves you

Now, some optometrists are asking (and many ophthalmologists are offering) to co-manage refractive patients, applying Medicare's 80/20 model for cataract care billing. But you must be careful when carrying that formula over to refractive surgery. Before you decide how you'll handle refractive co-management, consider these points:

The opinion of your professional societies. The American Academy of Ophthalmology (AAO) and the American Society of Cataract and Refractive Surgery (ASCRS) have stated that you shouldn't routinely co-manage any type of care. A Feb. 28, 2000, joint position paper states that co-management is justifiable only in cases of your unavailability because of travel, illness or leave, because you're an itinerant surgeon in a rural area, or because travel for a patient is difficult. Routine co-management, when done for predominantly financial reasons is, according to ASCRS and the AAO, unethical and may be illegal.
However, the position paper goes on to state that when co-management takes place for other reasons, full disclosure and patient consent are necessary. Any financial arrangements with the co-managing provider must be disclosed, and that individual must be qualified to perform the care.
That acknowledgement leaves the door open for co-management to take place for reasons other than your unavailability. Presumably then, a surgeon who thinks (and can demonstrate) that he can better serve patients if he works in tandem with qualified optometrists isn't precluded from doing so.
The position paper doesn't carry the force of law, and was meant to "offer practitioners voluntary and nonenforceable guidelines as to what co-management practices the AAO and ASCRS consider to be appropriate and in patients' best interests." But, it's still important to note that the paper clearly states that co-management, done routinely and for purely financial reasons, is unethical.
In many states, engaging in unethical behavior can put your license at risk. So, while the paper seems to open the door to co-management, you can't safely ignore the caveats.

No safe harbor exists. Another point to consider is that the U.S. Office of Inspector General (OIG) has refused to "safe harbor" the ophthalmologist-optometrist co-management relationship where Medicare is billed for services using a 54/55 modifier and the surgical fee is split 80/20.
In November of last year, the OIG created eight new fraud and abuse safe harbors, including one for referral agreements for specialty services. However, in response to concerns about the existence of blanket arrangements between ophthalmologists and optometrists, the OIG specifically refused safe harbor protection for that referral relationship.
However, not being in a safe harbor doesn't mean that an action or relationship is illegal; it's merely subject to legal scrutiny. A blanket arrangement where no real work is performed in exchange for 20% of the surgical fee may be suspect, but one where real work that's not "automatic" is performed may not be a problem at all.

Federal law. Prominent U.S. Attorneys have privately opined that routine cataract co-management is an illegal kickback under current Medicare Fraud and Abuse laws. And some have gone further, stating that even though Medicare doesn't pay for refractive surgery, refractive co-management may constitute an illegal kickback because the high payment creates an incentive to refer Medicare patients, particularly cataract patients. For the purely refractive surgeon, this analysis
wouldn't hold true, but you must consider state law as well.

State law. State law and the positions taken by regulatory bodies may be as big a concern as federal law. Most states prohibit fee splitting. In Illinois, for example, any division of fees is a civil offense. And some states are limiting the circumstances under which co-management will be allowed. The issue is also playing out in some state legislatures, such as New Jersey's, where optometrists (who lobby the legislature to make co-management legal) go toe to toe with Medical license boards (where M.D.s look to punish those who co-manage).

Liability. Any time you turn over a patient to another healthcare provider for care, you lose control of the patient, if only briefly. Add to that the fact that you're handing over care to someone not licensed to perform the surgical procedure and not capable of providing any subsequent surgical intervention that may be required. In the event of a bad outcome, if any relationship can be established between the bad outcome and the referral back for co-management, the likelihood of a substantial plaintiff's award is enormous.
Ophthalmologists who allow optometrists working in their own practices to do the same run the same risk, theoretically, but they also supervise and control their employees and know (at least in theory) what's going on in their own offices. The same can't necessarily be said of an independent co-management relationship.
Indeed, with an official (albeit non-binding) statement from the specialty societies, one must wonder whether a new "standard of care" hasn't been established -- one that, absent rare circumstances, deems co-management to be negligence, per se. Obviously, there hasn't been enough time for case law to develop on this topic, but it's only a matter of time before someone makes that allegation.
You can address liability concerns by carefully screening optometrists with whom you co-manage. By treating co-managing optometrists the same way you would another physician looking to be credentialed onto a medical staff or into a health plan, you can minimize the risk of liability.
Co-managing with only a carefully selected pool of a few optometrists reduces the risk that they'll miss a diagnosis or a problem and that malpractice will occur. Taking real care to observe the staff and procedures in the optometrist's office reduces the likelihood that a claim of "negligent credentialing" or "negligent referral" will be successful.
You can further reduce liability concerns by requiring anyone who wishes to co-manage to undergo initial training and subsequent continuing education in medical and surgical techniques and care protocols. Also, any co-managing providers should be made aware of your office procedures and policies.

Fair payment. Payments for co-management must be fair and reasonable. Medicare has given its seal of approval to an 80/20 division of the surgical fee in cataract cases, even though the OIG hasn't safe harbored the arrangement. For real work performed in cataract co-management, 20% of the surgical reimbursement isn't only reasonable, it's what is authorized.
However, be careful about carrying that model over to refractive co-management. First, the 80/20 split for cataracts is based on the surgeon's fee only. Refractive fees include payment for use of the laser, microkeratomes and other supplies, and a component for use of the facility where the surgery is performed.
You should think in terms of the surgeon's component being something less than the whole fee. Also, if the work required is less than what might be required in a real co-managed cataract case, the percentage may need to be less than 20%. Indeed, it may be better to fix it at a specified dollar amount to cover the cost of whatever an office visit/refraction might be. An alternative is for you to reduce your fee to the patient and let the optometrist work out fair compensation and bill the patient directly for his services.
But as noted above, you shouldn't proceed with any of these options until you've provided full and fair disclosure to the patient and obtained his consent of this style of case management.

Co-management must be real. The one aspect of the AAO/ASCRS joint position paper, any statements from U.S. Attorneys, case law, statutes and regulations that's perfectly clear is that co-management without real, substantive services being provided is unethical and a kickback (or illegal fee splitting) if Medicare isn't involved. No real services means exposure to civil and criminal liability, and you certainly can't afford that.

Time for a change?

As of now, the decision of whether to co-manage your refractive surgery patients is up to you. But, especially in light of the current environment, the only safe way to approach the issue -- for you and your patients -- is to consider each possible benefit and every potential pitfall.

Robert A. Wade, Esq., and Bruce J. Goldstein, Esq., attorneys with Wade, Goldstein Landau & Abruzzo, P.C., in Berwyn, Pa., write frequently on practice management and healthcare legal issues.

A Co-Management Protocol to Reduce Your Risks

By Donna M. McCune, C.O.E., C.C.S.-P.

San Bernardino, Calif.

Since Medicare's physician payment reform led to the co-management of cataract cases, the sharing of postoperative care has been extended to other surgical procedures as well -- in particular, refractive surgery. And as the volume of refractive cases continues to grow, so does the number of cases being co-managed.

Unfortunately, some physicians have a cavalier attitude about co-management arrangements for refractive surgery. They reason that Medicare doesn't cover refractive surgery, so the fierce scrutiny of the government won't be focused on these arrangements. What they may not realize is that other laws, not directly related to Medicare, apply to referral arrangements between ophthalmologists and optometrists. For that reason, they should be concerned about the risks involved.

In fact, co-management of refractive surgery involves at least three kinds of risks:

Legal risks. These derive from state anti-kickback and fee-splitting laws. Arrangements that call into question the purpose of the co-management and cause speculation about the ethical behavior of those involved may be considered illegal. Additionally, state laws govern the scope of practice of ophthalmologists and optometrists and limit what can be delegated to another doctor by the surgeon.

Medical risks. These are associated with poor outcomes or mismanagement.

Loss of patients. Co-managing surgeons also run the risk that patients will seek out a better offer with a competitor.

If you choose to co-manage, you can take steps to reduce your risk. Specifically, you can develop protocols that will ensure your practice is abiding by the relevant laws and regulations. In this article, I'll provide a case study that illustrates useful strategies to help you accomplish that.

Refractive co-management: a case study

Tara Lee is a 29-year-old woman who has worn contact lenses since she was a teenager. She is myopic and her prescription is � 4.25D sphere in both eyes. She enjoys sports and finds her contact lenses to be a bother. She decides that refractive surgery might eliminate the need for glasses or contact lenses.

She's spoken to her long-time optometrist, Jennifer Jones, O.D., about her options. Based on her most recent exam, Dr. Jones indicates that she's a good candidate for LASIK and that Steve Smith, M.D., is a highly skilled refractive surgeon who could perform the procedure. (Dr. Jones has referred numerous cases to his office and his results have been excellent.)

Tara presents to Dr. Smith for a LASIK consultation, and he confirms that she's a good candidate.

Dr. Smith wants to co-manage Tara's surgery with Dr. Jones but has several concerns. To protect himself, he should consider the following protocols.

Patient consent

Refractive surgery receives a tremendous amount of media coverage. News stories present the favorable and possible unfavorable results of refractive surgery. Also, physicians and corporate laser entities spend substantial dollars on advertising. Some ads may lull patients into believing that the procedure is risk-free.

Given our litigious environment, the need for an exhaustive informed consent has never been greater. This process is more complex when the surgery is co-managed.

In a co-managed situation, the patient must be aware of the option of having a portion of his care provided by a practitioner other than you. You should describe for the patient in detail what's involved in follow-up care, and also who's qualified to provide that care. The patient decides whether or not to be co-managed, and you must honor that choice.

In our case study, Tara has been seeing Dr. Jones for several years and after being presented with the risks, benefits and logistics of the co-management arrangement, she elects to have Dr. Jones provide some of the care associated with her LASIK.

In addition to her regular consent to undergo the procedure, Dr. Smith should obtain a signed record of her consent to be co-managed. The signed co-management consent form should include:

• acknowledgement that the patient understands the logistics of the arrangement

• acknowledgement of the financial details of the arrangement

• acknowledgement that the patient has been informed of the co-managing physician's qualifications to provide care

• authorization for the providers to share information relating to the patient's health and vision

• acknowledgement that the patient will be returned to the surgeon in the event of a complication.

Both of the doctors and the patient should sign the document. All parties should receive a copy, and both doctors should file the consent form as part of the patient's permanent record. The informed consent process takes place prior to the surgery and always involves the patient. It's ill advised to implement a co-management arrangement without the patient's consent.

Division of care and billing protocol

Co-managing practitioners are frequently involved in the preoperative as well as postoperative care of refractive surgery patients. Because third-party payers rarely cover refractive surgery, individual providers set their own charges for preoperative, intraoperative and postoperative care. Medicare's specification of 90 days postoperative care doesn't pertain; postop care usually extends much longer. Physicians may establish any mutually agreeable financial arrangements with patients. Most use an all-inclusive fee, but some prorate charges.

Prior to surgery, you should inform the patient of your fees and obtain his agreement in writing. This agreement includes:

• an itemized list of charges for each provider (i.e., you, the optometrist and the facility)

• acknowledgement that each provider bills separately for services rendered

• agreement that the patient makes a separate payment, i.e., separate check or money order, to you, to the optometrist, and to the facility. (If the charges are financed, the lender makes separate payments to each provider.)

• a detailed explanation of what's included in the charges (e.g., length of "global period" and enhancements).

In the event that a single payment is made (e.g., to a laser company), the patient is informed in writing of the itemized reimbursement that each individual provider receives.

Under Medicare's rules for cataract surgery, 20% of the global surgical fee applies to postoperative care. However, this may not be appropriate for refractive surgery co-management because postop care is usually longer than 90 days. Your fees should reflect the amount of work involved and represent a fair market value. The fees should not disguise a payment for the referral.

On Sept. 30, Tara has uncomplicated LASIK on both eyes. She makes a separate payment to Dr. Smith and to the laser facility. She sees Dr. Smith on Oct. 1 and Oct. 7.

At her second visit, Dr. Smith determines that it's clinically appropriate for Dr. Jones to assume the remainder of her postoperative care. He advises Tara that he is available should she develop any complications from the procedure. Tara arranges to see Dr. Jones in 2 weeks and agrees to make a separate payment to Dr. Jones for her postoperative care.

The following is an example of how Tara's charges might be allocated for bilateral LASIK.

Your overall obligation

In Tara's case, or any other, a proper co-management arrangement relies on effective communication between physicians and the patient. A key element in screening candidates for refractive surgery is the patient's expectations. Expectations about the surgical outcome are one part, but expectations regarding the logistics of post-op care are just as important.

Ultimately, you are responsible for determining the patient's suitability for surgery and arranging for appropriate postoperative care. This obligation holds true regardless of what type of surgery is being performed and how the procedure is reimbursed. Remember: Co-management depends on what's best for the patient -- not the economic advantages to the referring physician or surgeon.

Donna McCune is a senior reimbursement consultant with Corcoran Consulting Group. She has 14 years of experience in ophthalmology, including 12 years as an administrator in a busy medical/surgical ophthalmic practice in Connecticut.

Caution Light for Co-Management

"Let's say I have a LASIK practice, and one of my medical doctor ophthalmologist colleagues in Macon, Ga., wants to take advantage of our Nidek laser and send a patient to me for LASIK. And, he'd like to follow that patient afterward. I'm happy to do the LASIK and share the care by sending that patient back to that medical doctor. We don't have much problem with that do we? If an optometrist wants to do the same thing, we don't have a problem with that, do we?

"So where's the beef? The beef has to do with greed. Are you sending the patient back and paying the doctor money to give you the patient and to allow him to follow the patient? And is that payment an inappropriate amount of money for the work done? That's the crux issue."

-- Edited highlights from the comments of George O. Waring III, M.D., during the symposium Hallway Controversies: The Business of Refractive Surgery, presented by the ASCRS Refractive Surgery Special Interest Group at this year's annual meeting in Boston.

Red Light for Co-Management

"Co-management is only an off-cycle work mechanism. There is actually very little management going on. It's a red button to push if the co-managing doctor thinks there's a problem. Then, management goes back to the surgeon.

"Furthermore, the surgical decision-making is subtlely subverted by the wishes of the referring doctor. It's very difficult to criticize or correct somebody that you are dependent upon for business.

"Also, the splitting of fees doesn't accurately reflect the charges for the services provided. A complete eye exam for both eyes, including dilation and refraction, might be had in my hometown for $85. Let's say that you do three complete visits, which I think is a lot for a successful postoperative LASIK patient. So that's $255. And let's just add in another one just for good measure to make sure that the person is really doing his job. So you're talking about $340 maximum for both eyes in terms of what those services might cost in a real market.

"Let's take a $4,000 bilateral LASIK fee, which is very generous in the Atlanta area. 20% of that is $800, right? Wrong. You have to subtract out the facility fee. So, you'd subtract approximately $600 x 2 ($1,200) from $4,000. That leaves $2,800, and 20% of that is $560. A much higher figure than if that work were done simply as eye exams.

"I think it's very clear that co-management fees are grossly in excess of the true service that is being provided, and as such are revealed as nothing other than a referral fee."

-- Edited highlights from the comments of J. Trevor Woodhams, M.D., during the symposium Hallway Controversies: The Business of Refractive Surgery, presented by the ASCRS Refractive Surgery Special Interest Group at this year's annual meeting in Boston.

Red Light for Co-Management

"Although I know that exceptions can exist, I have no doubt that the surgeon knows best. I think the non-surgical doctor is not going to be as up to speed, regardless of having been tested or credentialed at some time, in follow-up care.

"If we want to do the best for our patients and the best for our profession, we have to recognize that postoperative evaluation by the surgeon leads to alterations in technique and innovation, which advance the well-being of not only our patients, but of patients all over the world. We must learn from our mistakes, and that's very hard to do in a setting in which we don't see the results of what we do.

"I also think it's difficult to document the qualifications of co-managers, whether they're optometrists or ophthalmologists. We talk about patient choice and informed consent, but patients really don't understand the difference. We've seen time and again surveys of the public documenting the fact that patients don't really understand the difference in training and qualifications of ophthalmologists and optometrists. In fact, I think full informed consent would result in patients being much more selective in choosing the surgeon as the person who would do the follow-up care.

"Finally, I think having the surgeon follow the patient and develop a relationship helps the surgeon to be a physician, not just a technician, and that's good for the profession -- and in the long run good for patients."

-- Edited highlights from the comments of I. Howard Fine, M.D., during the symposium Hallway Controversies: The Business of Refractive Surgery, presented by the ASCRS Refractive Surgery Special Interest Group at this year's annual meeting in Boston.

Green Light for Co-Management

"If we look at co-management from a historical perspective, and I think we should, optometrists have been good stewards of their patients' welfare and best interests, and have sought the appropriate referrals. Also, the academic education and continuing education of optometrists have led to an expanded scope of practice in almost all states.

"Their continued interest in their patients requires appropriate communication with the surgeon, which is of paramount importance to them. They want a pleasant surgical experience and excellent outcomes for their patients.

"Therefore -- in situations where the patient is informed of his options, and his optometrist is qualified -- c0-management has what I think is the historical and current validity to continue."

-- Edited highlights from the comments of John D. Hunkeler, M.D., during the symposium Hallway Controversies: The Business of Refractive Surgery, presented by the ASCRS Refractive Surgery Special Interest Group at this year's annual meeting in Boston