QUESTION: Do the Medicare Secondary Payor rules apply to our freestanding ambulatory surgery center?
ANSWER: Yes, they do. All Medicare-participating providers are required to file claims with Medicare using billing information obtained from the beneficiary to whom the item or service is furnished and all entities seeking payment for any item or service furnished under Part B are to complete, on the basis of information obtained from the individual to whom the item or service is furnished, the portion of the claim form relating to the availability of other health insurance. Thus, any providers (including ASCs) that bill Medicare for services rendered to Medicare beneficiaries (other than Medicare Advantage Plan members) must determine whether or not Medicare is the primary payor for those services. This must be accomplished by asking Medicare beneficiaries, or their representatives, questions concerning the beneficiary’s MSP status. If the provider fails to file correct and accurate claims with Medicare, and a mistaken payment situation is later found to exist, Medicare can recover its conditional or mistaken payments. All providers are required to retain the information about secondary payors for 10 years. The only difference between hospitals and other providers like ASCs is that hospitals are subject to regular audits by the MAC whereas other providers are not.
QUESTION: We have several ambulatory surgery centers (“ASCs”) in our System. We recently looked at the bylaws of the ASCs and they are quite antiquated. Even more of a concern, we learned that the credentialing process in the bylaws is not being followed at the ASCs. We need to work with the ASCs to change their bylaws, but where do we start? The medical staff bylaws (and credentials policy) for the hospitals in our System are now all very similar. Can we incorporate the ASCs into the medical staff bylaws?
ANSWER: You asked if the ASCs could be incorporated into the medical staff bylaws of the hospitals in your System. This approach has the appeal of simplicity. However, given the vast differences in the size, structure, and organization of the medical staffs at the ASCs and the medical staffs at the hospitals, this option seems awkward at best. There might also be some regulatory issues with this approach. Specifically, the ASCs are required to have their own medical staffs in some states. Thus, in order for the medical staffs of the ASCs to function as a part of the medical staffs of the System hospitals, it could be necessary to seek an exception from the Department of Health.
Another option would be to take the medical staff documents that were prepared for the System hospitals’ medical staffs and use them as a starting point for the creation of governance documents for the ASCs. We recommend this approach for several reasons. First, this approach would provide an opportunity to update the ASC bylaws to reflect current practices. Second, this approach would help ensure that the ASC bylaws are well-drafted and in compliance with controlling law. Third, while the hospital medical staff documents would have to be substantially pared down and streamlined for use by the ASCs, these documents would include key provisions, such as a System Credentials Committee, a Professional Affairs Committee to resolve disputes among the Medical Executive Committees, and language to ensure that decisions at one System facility are applicable at all System facilities, which would facilitate uniformity within the System.