Question
Very often, a physician will refer a patient to our private practice audiology clinic for an ''Audiologic Evaluation and ENG'' with a diagnosis of ''Vertigo''. In the best interest of the patient, his audiologic evaluation may indicate tests of retrocochlear function and OAEs. Without the physician specifically ordering these tests, does Medicare consider it fraudulent to perform and bill these tests if they are clinically indicated?
Answer
With regard to providing the clinical services after physician referral, the most important characteristic of any test or procedure for reimbursement (and, of course, professional standards) purposes is the clinical appropriateness for the symptom or disease presented. Thus, if in fact both tests for retrocochlear function as well as OAEs would be considered clinically appropriate under the standard of care of the audiologist of good standing for the patient's condition, then such a spectrum of activity would not be considered fraudulent under the False Claims Act, the most directly implicated law that might apply to this question. Note, however, that it is usually the physician that is to bill Medicare for these services, and audiologists who attempt to directly bill Medicare would indeed be subject to False Claims Act fraud and abuse law if he or she had knowledge that such billing is impermissible.
Bryan A. Liang, MD, PhD, JD is Professor of Health Law & Policy in the Health Law & Policy Institute, University of Houston Law Center, Houston, TX, and Professor of Medical Humanities in the Institute for Medical Humanities, University of Texas Medical Branch, Galveston, TX. His work focuses upon the interface between health care and legal systems. His book, ''Health Law & Policy: A Survival Guide to Medicolegal Issues for Practitioners'' was published by Butterworth-Heinemann in 2000.