Published 3/1/2008
Charlene MacDonald, MPP

In-office imaging services under threat

Maryland Orthopaedic Association is fighting back

Almost 4 years ago, a debate began in Maryland regarding the extent to which orthopaedic and other nonradiology medical practices are allowed to use, within their own offices, magnetic resonance imaging (MRI) and computed tomography (CT) as part of the diagnosis and treatment of patients. At the heart of the debate is the “Patient Referral Law,” or, more formally, the Maryland Patient Referral Act (“the Act”).

Enacted in 1993, the law aims to reduce unnecessary medical procedures by controlling the circumstances under which physicians can refer patients to healthcare entities in which they have a financial interest. The issue has been, and continues to be, debated in various arenas, including the courts, the State Board of Physicians, and the Maryland legislature.

In 2004, the Maryland Attorney General’s (AG) Office issued an opinion that drastically affected nonradiology practices and the common understanding of the Act The AG concluded that the Act “bars a physician in an orthopedic group practice from referring patients for tests on an MRI machine or CT scanner owned by that practice, regardless of whether the services are performed by a radiologist employee or member of the practice or by an independent radiology group.” The AG further stated that the “same analysis holds true for any other nonradiology medical practice that owns an MRI machine or CT scanner.” No other state in the country imposes such a broad restriction on orthopaedists and other nonradiology practices.

Promoting patient care and access
After the AG issued his opinion, a group of Maryland orthopaedic practices and other nonradiology medical practices formed the Maryland Patient Care and Access Coalition (MPCAC). According to James J. York, MD, MPCAC’s president and a board member of the Maryland Orthopaedic Association, MPCAC was formed “to promote a high quality of patient care in Maryland, including the improvement of patient access to advanced imaging services such as magnetic resonance imaging and computed tomography.”

Today, nearly 300 physicians from 18 medical practices across Maryland, including 12 orthopaedic practices, are members of MPCAC. MPCAC member practices also include urologists, cardiologists, gastroenterologists, and emergency medicine specialists.

Taking the case to court
Shortly after the AG issued his opinion, a purported class action suit was filed in the Circuit Court for Montgomery County against one of MPCAC’s orthopaedic member practices. The lawsuit—Duys v. Orthopedic Associates—alleged that Maryland patients had received MRI scans in violation of the AG’s interpretation of the Patient Referral Law. In spring 2005, the Duys court ruled in favor of the orthopaedic practice, finding that the plain words of the Act permit in-office imaging that is “directly supervised” by the referring physician.

In a second case, Potomac Valley Orthopaedic Associates, et.al. v. Maryland State Board of Physicians, MPCAC member practices challenged a declaratory ruling issued by the Maryland Board of Physicians that stated that orthopaedic practices should not be permitted to use in-office MRI services. In Potomac Valley Orthopaedic Associates, the court ruled in favor of the Board of Physicians, creating a conflict with Duys. The MPCAC member practices immediately challenged the decision and the case is currently pending in the appellate court, with a ruling expected in late 2008. The American Association of Orthopaedic Surgeons (AAOS) is leading a broad coalition of physician specialty groups in filing an amicus brief in support of the MPCAC in the appeal.

Legislating change
The debate over in-office imaging is also being addressed in the Maryland legislature. During the 2007 legislative session, MPCAC, with the assistance of a hired lobbyist, began the process of educating legislative leaders about the issue of MRI and CT imaging by nonradiology specialists.

A bill was introduced that would have authorized multispecialty practices in rural areas to provide in-office MRI and CT scans to patients. In response, Dr. York and other Maryland physicians provided testimony to the relevant House and Senate legislative committees that the measure did not go far enough because it provided no relief for practitioners in single-specialty practices or in urban areas. The bill stalled in committee and the Maryland Orthopaedic Association is working with MPCAC to introduce legislation in 2008 protecting in-office imaging services in the state.

What’s next?
Although Maryland’s severe restrictions on in-office imaging remain an anomaly, orthopaedic surgeons across the nation should be aware that similar restrictions could be enacted in other states. According to the AAOS position statement on In-Office Diagnostic Imaging Studies by Orthopaedic Surgeons, such restrictive policies are “likely to increase the cost of providing these services and add a substantial risk to patients who need comprehensive management of orthopaedic conditions and specialized positioning and handling in the radiographic suite.”

The AAOS believes that any policy that prohibits orthopaedists from performing and interpreting diagnostic imaging studies in their offices interferes with the patient’s ability to receive optimal care and will aggressively fight attempts to limit these services.

Charlene MacDonald, MPP, is AAOS manager of state legislative and regulatory affairs in the Washington, D.C., office of government relations. She can be reached at macdonald@aaos.org