Senate Bill S237

                                BILL NUMBER:S237

TITLE  OF BILL:   An act to amend the social services law, in relation
to including portable x-ray services as a covered service for  medical
assistance

PURPOSE:    To  include  portable x-ray and imaging services, that are
provided in mobile settings, to the list of services reimbursed  under
the State's Medicaid program.

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.