Potomac Valley Orthopaedic Associates v. Md. State Bd. of Physicians

• Decision Date: 24 January 2011
• Docket Number: Sept. Term,No. 18,2008.,18
• Citation: 417 Md. 622,12 A.3d 84
• Parties: POTOMAC VALLEY ORTHOPAEDIC ASSOCIATES, et al.v.MARYLAND STATE BOARD OF PHYSICIANS, et al.
• Court: Maryland Court of Appeals

417 Md. 622

12 A.3d 84

POTOMAC VALLEY ORTHOPAEDIC ASSOCIATES, et al.

v.MARYLAND STATE BOARD OF PHYSICIANS, et al.

No. 18

Sept. Term

2008.

Court of Appeals of Maryland.

Jan. 24, 2011.

Howard R. Rubin (William E. Copley of Sonnenschein Nath & Rosenthal LLP, Washington, D.C.), on brief, for appellants.Thomas W. Keech, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for appellees.Gary R. Alexander (James K. McGee of Alexander & Cleaver, P.A., Fort Washington, MD), on brief, for appellees.William J. Murphy, Esq., John J. Connolly, Esq., Murphy & Shaffer LLC, Baltimore, MD, for Amici Curiae brief of the American Association of Orthopedic Surgeons, American College of Surgeons, American Urological Association, American Association of Neurological Surgeons, American Academy of Neurology, and American Gastroenterological Association.Seth A. Rosenthal, Esq., Kristin M. Koger, Esq., Venable LLP, Rockville, MD, for Amicus Curiae brief of the American College of Radiology.Shari Ross Lahlou, Esq., Crowell & Morning LLP, Washington, D.C., for Amicus Curiae brief of the American Society for Therapeutic Radiology and Oncology.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.MURPHY, J.

This case presents an issue of statutory interpretation that arises out of a “DECLARATORY RULING” requested pursuant to Section 10–304(a) of the State Government Article (SG), and issued on December 20, 2006 by the Maryland State Board of Physicians (the Board) pursuant to SG § 10–305(a). After that ruling was affirmed by the Circuit Court for Montgomery County pursuant to SG § 10–305(c), the Appellants—twelve medical practices that specialize in the fields of orthopedics, urology, radiation oncology and emergency medicine—noted an appeal to the Court of Special Appeals pursuant to SG § 10–223(b)(1), and presented that Court with the question of “ [w]hether the Maryland Patient Referral Law [ (Subtitle 3 of Title 1 of the Health Occupations Article) ] prohibits an orthopaedic surgeon from furnishing patients with MRI or CT diagnostic services within his or her office or group, even when the orthopaedist complies with the ‘group practice’ exemption in Health Occ. § 1–302(d)(2) or the ‘direct supervision’ exemption in Health Occ. § 1–302(d)(3)?” Before the Appellees filed their briefs in the Court of Special Appeals,¹ this Court issued a writ of certiorari on its own initiative. 404 Md. 659, 948 A.2d 70 (2008).

Although the Appellees agree that this case presents but one question, they argue that the question should be rephrased. According to Mark Bohlman, M.D. (who is participating as an Appellee “Individually and as President on behalf of The Maryland Radiological Society, Inc.”), the proper question is:

Whether or not the Board Erred in Ruling that a Referral by an Orthopaedic Physician for an MRI to be Performed on or by an MRI Machine Owned or Leased by the Orthopaedic Practice is an Illegal Self–Referral within the Meaning of the Maryland Self referral Law and was not Exempt under the Exemptions set out in § 1–302(d)(2), (3) or (4) of the Health Occupations Article of the Maryland Annotated Code[?]

According to the Board, the proper question is:

Do the three exceptions in HO § 1–302(d)(2), (3) and (4) to the general statutory prohibition against physician self-referrals apply to a physician's referral of a patient for MRI imaging on a machine in which that physician's practice has a beneficial financial interest?

For the reasons that follow, we hold that the Board's Declaratory Ruling was correct, and therefore affirm the judgment of the Circuit Court.

Background

The Board's Declaratory Ruling included the following findings and conclusions:

INTRODUCTION

This Declaratory Ruling arises out of two formal petitions, separately filed by CareFirst BlueCross BlueShield and The Injured Workers' Insurance Fund. These petitions ask the Board for a ruling on the propriety under the Maryland Self Referral Law of referrals made by physicians for MRI scans when that physician has a financial interest in the performance of that scan.

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BACKGROUND

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[T]he cases reviewed by the Board ... indicate that a common factual scenario exists among some Maryland orthopaedic practice groups with respect to referrals for MRI services. The common factual scenario is set out below. Additionally, the Board has found several relevant variations to the general fact pattern that occur frequently in Maryland. The Board will rule on those as well.

General Fact Pattern

A patient is seen by an orthopaedic physician who has a beneficial financial interest in the orthopaedic practice. The patient may have been referred to the orthopedist by another physician, or the patient may have come directly to the orthopaedic physician. The orthopaedic physician makes a referral for an MRI scan. The patient receives the MRI a few days or weeks later on an MRI machine that is owned and operated by, or leased by, the orthopaedic physician's practice. The MRI image may be read in-house or may be sent to an off-site radiologist to read. An off-site radiologist may state his or her findings in a radiology report and forward the report back to the orthopaedic physician. The referring orthopaedic physician's practice submits a bill for the MRI as the provider of the MRI scan (though not necessarily as the provider of the interpretation of the scan).

Additionally, the Board found the following variations to this fact pattern. The following are modified fact patterns which may also occur in significant numbers in this State.

VARIATION 1

Same as the general fact pattern, but the orthopaedic physician obtains a signed Maryland Uniform Consultation Referral Form from the patient's primary care physician after the orthopedic physician determined that the MRI was necessary, but before the MRI was actually conducted.

The primary care physician does not, between the time that the orthopaedic physician determines that the MRI is necessary and the time that the MRI was accomplished, see the patient for the purpose of determining if the MRI is necessary, nor does he or she exercise independent medical judgment as to whether the MRI is appropriate or necessary.

VARIATION 2

Same as the general fact pattern, but the orthopaedic physician names the primary care physician as the “referring physician” in the Health Insurance Claim Form.

The primary care physician does not, between the time that the orthopaedic physician determines that the MRI is necessary and the time that the MRI was accomplished, see the patient for the purpose of determining if the MRI is necessary, nor does he or she exercise independent medical judgment as to whether the MRI is appropriate or necessary.

VARIATION 3

Same as the general fact pattern, but a physician who is an employee of the medical practice that provides the MRI scan evaluates the patient and orders the MRI to be done by that practice. The physician-employee does not have any beneficial interest in the medical practice.

ANALYSIS

The Purpose of the Self–Referral Law

The Maryland Self–Referral Law was enacted during the 1993 legislative session as House Bill 1280 (HB 1280). The Legislative history shows that HB 1280 was part of a statutory scheme designed to address two problems plaguing health care in Maryland: “access to health insurance and escalating health care costs.”

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There seems to be little question that the legislature intended by this bill to substantially restrict the practice of self-referring, especially self-referrals of MRI scans, CAT scans and radiation therapy services. The Self–Referral Law thus created a broad and pervasive prohibition against self-referrals not only by physicians (as did the federal law) but also all by all other health care providers. In addition, and again unlike the federal law, the Maryland prohibition covered every type of health care service.

The Maryland–Self Referral Law first flatly bans any self-referral and any arrangement or scheme which has a principal purpose of accomplishing self-referrals:

(a) Prohibited referrals.—Except as provided in subsection (d) of this section, a health care practitioner may not refer a patient, or direct an employee of or a person under contract with the health care practitioner, to refer a patient to a health care entity:

(1) [I]n which the health care practitioner or the practitioner in combination with the practitioner's immediate family owns a beneficial interest.

(2) In which the practitioner's immediate family owns a beneficial interest of 3 percent or greater; or

(3) With which the health care practitioner, the practitioner's immediate family, or the practitioner in combination with the practitioner's immediate family has a compensation arrangement....

(b) Payment prohibited.—A health care entity or a referring health care practitioner may not present or cause to be presented to any individual, third party payor, or other person a claim, bill or other demand for payment for health care services provided as a result of a referral prohibited by this subtitle.

(c) Applicability of subsection(a).—Subsection (a) of this section applies to any arrangement or scheme, including a cross-referral arrangement, which the health care practitioner knows or should know has a principal purpose of assuring indirect referrals that would have [been] in violation of subsection (a) of this section if made indirectly.

Md. Health Occ. Code Ann. § 1–302 (cited hereafter by section “§” only.)

Because the general rule is so broad and sweeping, numerous exceptions had to be made to accommodate situations in which there is no significant threat of overutilization. Each of the three exceptions at issue in this case generally permits referrals where there is little incentive for a physician to self-refer for financial gain.

This Declaratory Ruling will deal with the three exceptions contained in § 1–302(d)...