Includes portable x-ray services and laboratory and other diagnostic procedures provided in mobile settings as covered services for medical assistance

Summary of provisions

Amends section 365-a of the social services law by adding a new subdivision 10. Subdivision 10 requires various radiological services, such as portable x-ray and imaging services, to be included as covered services for medical assistance. Such radiologic services must be provided in mobile settings pursuant to the order of a physician, and under a physician's supervision. Subdivision 8 defines radiologic services provided under a physician's supervision as those services where the supervising physician owns the radiologic equipment and the equipment is operated by the physician's employees, or where the owner of the radiological equipment hires a physician to certify, on an annual basis, that he or she periodically checks equipment operating manuals, observes the performance of the operators of the equipment, verifies that the equipment and personnel meet all federal, state, and local standards, and verifies that safety procedures are used in the operation of the radiological equipment.

For purposes of this subdivision, mobile settings are those facilities licensed pursuant to article twenty-eight of the public health law, or other long term care facilities and assisted living facilities licensed and regulated by the Department of Health.

Justification

Since the inception of the State's Medicaid program in 1965, providers of x-ray services have been eligible to become enrolled providers of medical services and hence to receive direct reimbursement for x-ray services provided for Medicaid patients. Until May 1, 1979, no distinction was made between portable and stationary x-ray services. Stationary x-ray equipment provides service to ambulatory patients who must travel or be transported to an x-ray laboratory. Portable x-ray equipment is used to provide x-ray services to non-ambulatory patients in nursing homes, other health-related settings, or at the patient's residence.

In May 1979, the State Health Department (Office of Health Systems Management) determined that only a physician of a State-licensed stationary facility (Article 28 hospital, etc.) was eligible for direct reimbursement because providers of portable x-ray and diagnostic ultrasound services were not listed as separate providers under the State Medicaid Plan. As a result, portable x-ray and diagnostic ultrasound providers, who are licensed, registered and enrolled as eligible providers of medical services under the Federal Medicare program and who were licensed, registered and enrolled as eligible providers under the State Medicaid program from 1968 to 1979, could no longer receive direct reimbursement for x-ray and diagnostic ultrasound services under Medicaid.

The Department of Health's determination that only a physician or Article 28 facility can directly bill Medicaid for x-ray and

diagnostic ultrasound services imposes an impossible dilemma upon licensed portable x-ray services for the following reasons: (1) In instances where a patient is covered for medical services by Medicaid only, a provider of portable x-ray and diagnostic ultrasound services can be reimbursed solely by splitting the physician's fee and thus placing the x-ray and diagnostic ultrasound service and the physician in a criminal violation of existing New York State law. (2) A majority of the patients served by portable x-ray and diagnostic ultrasound providers are nursing home residents covered under Medicare's Part B. Although portable x-ray and diagnostic ultrasound services are eligible Medicare providers, Medicare pays only 801 of the approved charges. The service being provided to Medicaid-only patients is being reimbursed through a Demonstration Project.

Since 1979, the various portable x-ray and diagnostic ultrasound services have been providing services to Medicaid AND Medicare patients in many cases at a net loss because of being denied Medicaid reimbursement. To date, no alternative physician provider source has emerged. Therefore, the Article 28 licensed facility is the only available option.

Portable x-ray and diagnostic ultrasound providers have applied for Article 28 certification. The New York State Department of Health (NYSDOH) declined to accept their application. According to NYSDOH, there is no administrative avenue for portable x-ray and diagnostic ultrasound providers to receive Article 28 certification, regardless of their quality, cost, character, and competence. This legislation creates an avenue for New York providers to receive compensation for the services they provide.

NYSDOH has excluded non-physician owned portable x-ray and diagnostic ultrasound providers as a covered service in the State Medicaid Plan. As an excluded or non covered service, portable x-ray and diagnostic ultrasound providers must bill many of the patients, who are duly-eligible for Medicare and Medicaid, directly for the 20% coinsurance required by Medicare. Medicaid indirectly funds the 20% coinsurance, at significant administrative expense to local county governments, nursing homes and providers. This legislation would allow portable x-ray and diagnostic ultrasound providers to bill Medicaid directly for the 201 coinsurance, reducing the administrative expense of all parties, without increasing total Medicaid expenditures.

Under federal regulations, portable x-ray and diagnostic ultrasound providers are under the general supervision of a licensed physician. The physician is responsible for reviewing the competency of the staff performing the diagnostic tests and for periodic inspection of equipment. A state-licensed, independent physician interprets the results of the diagnostic test. The requirement by NYSDOH to only allow physician owned portable x-ray and diagnostic ultrasound providers to participate in Medicaid is excessive, prejudicial and must be eliminated. Physician ownership of diagnostic testing providers has increased the State's risk of fiscal abuse through acts of self-referral. New York has passed legislation limiting physician ownership of certain diagnostic testing services. New York State should not require physician ownership as the only acceptable model to provide this service.

Residents of the State's centers for developmental disabilities who are covered only by Medicaid require transportation out of their current settings to fixed facilities. The utilization of portable x-ray and diagnostic ultrasound services in these facilities would save the state money by eliminating the costly transportation fee and the residents would receive considerably less disruption.

Virtually no other state has summarily denied Medicaid reimbursement to licensed portable x-ray and diagnostic ultrasound services. Clearly, the aged, infirm and chronically ill citizens of the State of New York should not be denied this important service. The neighboring states of Connecticut and Pennsylvania do cover portable x-ray and diagnostic ultrasound services in their Medicaid programs.

Legislative history

S.7678 Referred to Senate Social Services Committee S.3172 of 2001-2002: Referred to Senate Social Services Committee S.4416 of 2003-2004: Referred to Senate Social Services Committee S.119 of 2005-2006: Referred to Senate Social Services Committee S.310 of 2009-2010: Referred to Senate Health Committee

Fiscal implications

There will be no fiscal implications to the state since Medicaid covers the service, but does not directly reimburse the provider.

Effective date

This act shall take effect immediately.