Legal question regarding resident covering Linac

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firewicket

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Is it legal for a resident to come in on the weekend and treat a patient without an attending present? This specifically relates to the state of Texas. Can we get into trouble for this? Any information or citations would be greatly appreciated.

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Yes, it's legal, assuming the resident is an MD (etc.) with a valid state license. I can't give you any citations/info as to why it's OK for a doctor to treat a patient; it's generally recognized as acceptable.
 
Welcome to the forum scarbrtj.

If I am totally off in my regard to this question, anyone else with other opinions would be greatly welcomed as well to add in. Seeing as all of my co-residents hold a similar confusion on the matter, I don't see it as clearly cut and dry.
 
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There's nothing even close to 'gray' about this.... this is super legal and pretty widely accepted as the vast majority of what actually happens.....
 
There's nothing even close to 'gray' about this.... this is super legal and pretty widely accepted as the vast majority of what actually happens.....

It's not illegal to treat but it's illegal to bill and considered medicare fraud if any of the patients being treated have medicare as their insurance. Residents are not allowed to substitute for an attending in terms of coverage. I would definitely check this with an attorney prior to proceeding. BTW you can also get into deep trouble with the ACGME for this. This is the reason Baylor College of Medicine's radonc department went on probation in 2009 and almost lost accreditation.
 
It's not illegal to treat but it's illegal to bill and considered medicare fraud if any of the patients being treated have medicare as their insurance. Residents are not allowed to substitute for an attending in terms of coverage. I would definitely check this with an attorney prior to proceeding. BTW you can also get into deep trouble with the ACGME for this. This is the reason Baylor College of Medicine's radonc department went on probation in 2009 and almost lost accreditation.
On probation? By whom? Accreditation via whom?
 
Medicare requires direct supervision for igrt by a rad onc who is"able to furnish assistance in performance of the procedure if necessary."

I think the resident issue is a gray zone but if we take the analogy from surgery, I think the attendings there have to be involved in the case in order to bill Medicare.

Remember, Medicare supports resident training through GME grants to teaching hospitals, so I think it was considered double dipping to also have a resident bill Medicare patients on an attendings behalf during surgery cases. Iirc, some legal cases have occurred on this to support the above

It is perfectly legal to treat without a doctor in the clinic as mentioned above. The issue comes down to billing
 
I completely agree with medgator.

Residents can definitely cover for an attending physician in private practice, and you can submit a bill on their behalf for the work they do. You attach a special modifier to the billing that specifies a locum performed the work. Medicare does not even require a physician be registered with Medicare to perform locum work. Just have to be licensed and have an NPI. Different rules apply for work done in the teaching setting. I pulled this from CMS:

Payment for Physician Services in Teaching Settings.
Medicare pays for services furnished in teaching settings through the Medicare Physician Fee Schedule (PFS) if the services are:
• Personally furnished by a physician who is not a resident;
• Furnished by a resident when a teaching physician is physically present during the critical or key portions of the service; or
• Furnished by a resident under a primary care exception within an approved Graduate Medical Education (GME) Program.

https://www.cms.gov/Outreach-and-Ed.../Teaching-Physicians-Fact-Sheet-ICN006437.pdf
 
Thank you all once again for your collective knowledge. That is very helpful.
 
Accreditation and probation by ACGME.

Baylor settles out of court with no admission of wrongdoing in a civil (not criminal) case and the ACGME puts them on probation and threatens loss of accreditation? I am skeptical.

I would agree about billing for physician professional services under Medicare if no attending MD were in the building, although even interpretations about this have been challenged in a few civil cases that have been tossed out by federal judges. Billing private insurance would theoretically not be a problem. The technical services and the facility fee billing in a hospital or on an inpatient will be different, though. But at the end of the day, the vagaries and complexities of billing and supervision levels should not be an existential worry of a radiation oncology resident (unless you hope to make a few extra bucks via a lucrative qui tam). If you don't have scienter, don't go looking for it.
 
I would not worry about billing still being a resident. No way you can get in legal trouble.
 
Baylor settles out of court with no admission of wrongdoing in a civil (not criminal) case and the ACGME puts them on probation and threatens loss of accreditation? I am skeptical.

I would agree about billing for physician professional services under Medicare if no attending MD were in the building, although even interpretations about this have been challenged in a few civil cases that have been tossed out by federal judges. Billing private insurance would theoretically not be a problem. The technical services and the facility fee billing in a hospital or on an inpatient will be different, though. But at the end of the day, the vagaries and complexities of billing and supervision levels should not be an existential worry of a radiation oncology resident (unless you hope to make a few extra bucks via a lucrative qui tam). If you don't have scienter, don't go looking for it.

These are two different Baylors. Baylor Medical Center in Dallas, unrelated to Baylor College of Medicine (with a residency program in Houston) . Baylor Medical Center in Dallas had a billing issue which was completely unrelated to residents as they do not have a radiation oncology residency. Luckily Baylor College of Medicine (in Houston) was treating indigent patients at their county hospital and so there was no medicare issue. Of course the resident shouldn't have to worry about this anyways as it's the institution and not resident who bills medicare. The issue for them was accreditation by ACGME which requires attendings to be present during treatment. Baylor College of Medicine was on probation for 2 years due to lack of physician supervision during treatment weekends at one of their centers. These are facts which can easily be confirmed by the ACGME. Although it used to be the case where Attendings didn't have to be present during treatment weekends you shouldn't be doing this anymore.
 
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"accreditation by ACGME which requires attendings to be present during treatment"

Can you please cite a reference for that? That's news to me personally.
 
Lol some of you guys are straight clueless.

I almost died at the idea of the 'ACGME requiring attendings to be present for weekend treatment'
 
These are two different Baylors. The first is billing which is not allowed by medicare if the resident radiation oncologist is the only person who shows up for the treatment. Luckily Baylor College of Medicine was treating indigent patients at their county hospital and so there was no medicare issue. Of course the resident shouldn't have to worry about this anyways as it's the institution and not resident who bills medicare. The other is accreditation by ACGME which requires attendings to be present during treatment. Baylor College of Medicine was on probation for 2 years due to lack of physician supervision during treatment weekends at one of their centers. These are facts that can easily be looked up on the ACGME. Although it used to be the case where Attendings didn't have to be present during treatment weekends you shouldn't be doing this anymore.
There are no specific ACGME requirements that require attending presence for treatment. Some departments have this as a policy but most do not.
 
There are no specific ACGME requirements that require attending presence for treatment. Some departments have this as a policy but most do not.

It's by deduction since Baylor College of Medicine was put on probation by the ACGME for not having an attending present during treatment after one of the residents complained. All you need is a disgruntled resident to cause your residency to be in trouble.
 
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Lol some of you guys are straight clueless.

I almost died at the idea of the 'ACGME requiring attendings to be present for weekend treatment'

It's funny how a first year resident calls an attending clueless who has actually been part of the ACGME radiation oncology credentialing process.
 
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what exactly are you referring to?

Are you talking about a new start?

Because otherwise a patient that has already been treated can be treated over the weekend (say like fx 6 and 7) without an attending present.
 
It's funny how a first year resident calls an attending clueless who has actually been part of the ACGME radiation oncology credentialing process.

you mad bro?
 
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To the best of my knowledge there is no definitive case law here - some settlements possibly, but no case law. As medgator explains well - this is not a "legality" thing, it's more of a billing thing - especially if you're billing a professional code for IGRT.

In the middle of my residency our department changed policy that even for emergent treatments, attendings had to be present. They cited a medicare billing issue, not really a patient safety or oversight one.

However, as others have said, many departments do not require attending presence for emergencies and other unique circumstances. As of 4 years ago I know a "big name" program that was having senior residents staffing linacs in early morning or late evening hours without attending presence - I obviously don't know how they were billing this, but the residents did get extra pay for serving as the supervising physician when the attending(s) weren't there. This policy may have changed since.

====

Regarding the OP's particular concern - I would tread lightly about causing a stink over emergent XRT policy. If a whole clinic is going days on end without an attending present and residents staffing then you may have an issue. But for emergent situations even reasonable departments can have differing policies in this gray zone. If you personally feel underprepared to deliver an emergent treatment then you need to communicate this to your director or attendings. It's OK to feel worried about that. I think we all are when we start out. You just need to "practice" some scenarios, learn about how to do an MU calc, etc, and you'll be fine.
 
as long as the attendings are checking cone beams (even if remotely), you can still bill for IGRT
 
as long as the attendings are checking cone beams (even if remotely), you can still bill for IGRT

We've gone over this ad naseum in this forum, but this is debateable. There are court settlements where people have paid money to settle for lack of direct supervision. No case law exists to definitively answer the questions, but suffice it to say that some people disagree with this notion that it's OK to not be present for IGRT and still bill for it. As medgator mentions - direct supervision is required. Whether that be remote or not is a gray area. I'm personally probably OK with doing it, but our billers, administrators, and billing consultants have forbidden it in our practice - ie we will not bill for IGRT unless we are physically on the hospital campus.

Reasonable folks can disagree. I just don't want you to think it's a slam dunk that remotely approving IGRT is 100% kosher in the medicare billing world.

This article outlines a number of issues....

http://www.appliedradiationoncology...act-allegations-against-radiation-oncologists
 
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Maybe in the hospital-based setting,


The whole thing is about residency programs specifically, correct?

I guess there are some non hospital-based residencies though?
 
Maybe in the hospital-based setting, but even then, there have been whistleblower cases against that. No way in a freestanding center.

Recent lawsuit regarding hospital-based case

http://www.news-journalonline.com/article/20150319/news/150319362?p=all&tc=pgall

"'Without a properly trained radiation oncologist supervising the delivery of radiation, there could be burns,' said John Yanchunis, an attorney with Morgan & Morgan who represented Montejo. 'There could be treatment of a body part that doesn’t need radiation.'"

Direct supervision is not personal supervision. Direct supervision (aka "level 2" supervision) is me sitting back in my office reading Vanity Fair while patients 50 feet away are being imaged and treated by the radiation therapist. Personal (aka "level 3") is me being physically present at the procedure being done. Interestingly, there's no rad onc HCPCS code which is level 3. I guess it's the mere nearness of my presence that prevents those burns and other nasty medical errors.
http://www.palmettogba.com/palmetto/providers.nsf/vMasterDID/8EEL736213?open
 
"'Without a properly trained radiation oncologist supervising the delivery of radiation, there could be burns,' said John Yanchunis, an attorney with Morgan & Morgan who represented Montejo. 'There could be treatment of a body part that doesn’t need radiation.'"

Direct supervision is not personal supervision. Direct supervision (aka "level 2" supervision) is me sitting back in my office reading Vanity Fair while patients 50 feet away are being imaged and treated by the radiation therapist. Personal (aka "level 3") is me being physically present at the procedure being done. Interestingly, there's no rad onc HCPCS code which is level 3. I guess it's the mere nearness of my presence that prevents those burns and other nasty medical errors.
http://www.palmettogba.com/palmetto/providers.nsf/vMasterDID/8EEL736213?open

The problem at above institutions was that the Attendings were resting at home and not in their offices. I'd be surprised if Attendings are still at home in this day and age when patients are being treated.
 
The gray area I have to deal with for my compliance people (or at least they see it as one. I don't), is can I treat a standard fraction IMRT/IGRT patient while upstairs in the OR scrubbed in for a brachy case? Where I did my residency and places where I've done moonlighting still allow treatment as long as you're on campus...but my overly cautious administrators are all worked up about being both scrubbed in a case and providing direct supervision for IGRT.

Any thoughts?
 
"'Without a properly trained radiation oncologist supervising the delivery of radiation, there could be burns,' said John Yanchunis, an attorney with Morgan & Morgan who represented Montejo. 'There could be treatment of a body part that doesn’t need radiation.'"

Direct supervision is not personal supervision. Direct supervision (aka "level 2" supervision) is me sitting back in my office reading Vanity Fair while patients 50 feet away are being imaged and treated by the radiation therapist. Personal (aka "level 3") is me being physically present at the procedure being done. Interestingly, there's no rad onc HCPCS code which is level 3. I guess it's the mere nearness of my presence that prevents those burns and other nasty medical errors.
http://www.palmettogba.com/palmetto/providers.nsf/vMasterDID/8EEL736213?open
Agreed regarding the statement from M&M lol, but medicare requirements are what they are. That being said, we have weekly instances where the therapists aren't sure on cone-beams and the occasional kV and the direct supervision requirement allows them to pull me away from reddit to check the films :D

Aren't unsealed sources like HDR brachy and Gamma Knife at the level of requuring personal supervision?
 
The gray area I have to deal with for my compliance people (or at least they see it as one. I don't), is can I treat a standard fraction IMRT/IGRT patient while upstairs in the OR scrubbed in for a brachy case? Where I did my residency and places where I've done moonlighting still allow treatment as long as you're on campus...but my overly cautious administrators are all worked up about being both scrubbed in a case and providing direct supervision for IGRT.

Any thoughts?

My administrators said it's probably fine but stop asking if it's ok :p
 
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