1. 0 Delegation of Services & Co-management The Co-management Dilemma

2. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY Disclosure  The speaker has no financial interest in the subject matter of this presentation and is not representing the Ethics Committee of the American Academy of Ophthalmology with this presentation.  For questions about the material contained herein or about the Academy’s ethics program in general, please contact the ethics program manager, Mara Pearse Burke at ethics@aao.org.ethics@aao.org

3. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY Why is this Topic Important?  Obligation to be Truthful  Integrity of the Profession  State and Federal Regulations

4. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY Delegation and Co-management  Physicians routinely delegate care and co- manage patients: With the retina doc in the practice who refers a suspected RD With the tech who does a pressure check after glaucoma surgery With a retired Ophthalmologist who no longer performs surgery, but whose patients want to stay with her

5. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY Potential Sources of Trouble  Delegation of care and co-management raise concerns when: There is inappropriate delegation There is inadequate consent  Rationale  Qualifications  Risks  Financial arrangements There is problematic utilization  Routine arrangement  No valid reason for arrangement  When the primary purpose is economic  When offered as an inducement for referrals  When established by coercion or condition from referrer

6. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY A Note on Law and Ethics  Delegation of medical care and co-management of individual patients are not per se unethical.  There are many legal issues and regulations that vary state-by-state of which you should be aware. Many states have laws that address fee splitting and/or co- management.  The state laws may cover procedures paid by private insurance.  Operative word is appropriate delegation, i.e., when it is in the patient’s best interests.

7. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY Medicare/Medicaid Anti-Kickback Statute  Prohibits knowingly and willfully soliciting, receiving, offering or paying any “remuneration” in return for: Referring a person for an item or service which may be paid by a “Federal Health Care Program” (e.g., Medicare/Medicaid, Veterans Health Programs, Indian Health Programs, Tricare); or Purchasing, leasing, ordering any item or service which may be paid by a Federal Health Care Program.

8. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY What is “remuneration”?  “Remuneration” means Giving any thing of value directly or indirectly, overtly or covertly, in cash or in kind.  Thus, the referral of cataract patients in exchange for providing post-operative care can violate the federal Anti-Kickback Statute  OIG has expressed concern about co-management based on economic concerns rather than clinical appropriateness and has refused to provide safe harbor protections for such arrangements

9. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY AAO Resource  Guidelines for the Avoidance of Inadvertent Anticompetitive Conduct, Policy Statement of the AAO http://www.aao.org/about/governance/upload/Final-2007-Guidelines-for- Avoidance.pdf  Be smart, utilize AAO and other resources to educate yourself before entering into any co- management arrangement.

10. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY 10 Co-management Code of Ethics: Applicable Principles  Principle 1. Ethics in Ophthalmology. An issue of ethics in ophthalmology is resolved by the determination that the best interests of patients are served.  Principle 5. Fees for Ophthalmological Services. Fees for ophthalmological services must not exploit patients or others who pay for services.  Principle 7. An Ophthalmologist’s Responsibility. It is the responsibility of a ophthalmologist to act in the best interest of the patient.

11. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY 11 Co-management Code of Ethics: Applicable Rules  Rule 2: Informed Consent  Rule 6: Preoperative Assessment  Rule 7: Delegation of Services  Rule 8: Postoperative Care  Rule 11: Commercial Relationships  Rule 15: Conflict of Interest

12. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY 12 Rule 2: Informed Consent  Informed Consent. The performance of medical or surgical procedures shall be preceded by appropriate informed consent.  Informed consent is a dialogue: 1- An assessment of patient competence to decide 2- Disclosure of relevant information 3- An assessment patients ’ comprehension 4- Affirmatively obtain consent from patient or surrogate  Informed consent occurs before a patient or surrogate signs anything  Informed consent is not a signature on a document.

13. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY 13 Rule 6: Pretreatment Assessment  Preoperative Assessment. …The ophthalmologist must evaluate the patient and assure that the evaluation accurately documents the ophthalmic findings and the indications for treatment…  Surgeons should make surgical decisions  Potential problems caused by delegation: Compromised physician-patient relationship Higher risk for litigation with a surprise outcome

14. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY 14 Rules 7 & 8: Delegation of Services & Postoperative Care  Aspects of care within the unique competence of the ophthalmologist must not be delegated. (Rule 7)  The providing of postoperative eye care until the patient has recovered is integral to patient management. (Rule 8)  Some aspects of care may be delegated The delegatee must have adequate qualifications The delegatee must be a dequately supervised The patient and the delegatee must consent in advance to the co-management arrangement

15. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY 15 Rules 11 & 15: Commercial Relationships & Conflicts of Interest  An ophthalmologist’s clinical judgment and practice must not be affected by economic interest in, commitment to, or benefit from commercial enterprises. (Rule 11)  A conflict of interest exists when professional judgment…has a reasonable chance of being influenced by other interests of the provider. (Rule 15)

16. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY 16 Rules 11 & 15: Commercial Relationships & Conflicts of Interest  Fees should be commensurate with services Kickbacks Unethical Potentially Illegal  The primary rationale should not be economic 1 Routine arrangements No apparent patient-care rationale MD: An inducement for referrals OD: A condition for referrals 1) ASCR/AAO Joint Position Paper: Ophthalmic Postoperative Care

17. WWW.AAO.ORGAMERICAN ACADEMY OF OPHTHALMOLOGY Appropriate Delegation  Efficient delivery of information  Efficient use of technology.  Ensures that the physician-patient relationship is maintained and nurtured.  Operative word is appropriate...