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Surgery centers face risks with premium intraocular lenses

Billing practices with respect to premium intraocular lenses (“IOLs”) implanted in surgery centers can create various risks for the surgery center.

These risks arise when a physician supplies the premium IOLs or purchase the premium IOLs from the ambulatory surgery centers or manufacturers and then directly bill the beneficiary for the IOL. Caution is urged in this area for the reasons described below.

The Centers for Medicare and Medicaid Services (“CMS”) reimburses a surgery center for its facility fee associated with the IOLs, which includes a bundled implant fee for the IOL. The fee includes payment for the conventional lens portion of an IOL, but not the full cost of a premium IOL. In some situations, the physician either (i) purchases the IOL from the surgery center, or (ii) separately acquires the IOL and then bills the beneficiary for the premium IOL, in some cases at a significant mark-up. This practice has been viewed disfavorably by certain industry experts and could be viewed as a kickback from the surgery center to the physician who bills for the IOL.

Good arguments exist that a surgery center should be solely responsible for acquiring and billing the premium IOL. First, the surgery center should supply the IOL due to the bundled Medicare payment it receives. If the surgery center does not supply the IOL, the Medicare payment could be viewed as improper because the surgery center receives payment for something it did not supply. Further, it is not clear that the physician has the right to sell the lens when CMS seems to contemplate, through the bundled fee, that the surgery center will provide the lens. The surgery center cannot opt out of the bundled payment, and CMS generally considers it impermissible to unbundle surgery center facility services.

Second, there is a risk that an impermissible kickback occurs when the surgery center foregoes its right to make a profit by giving its right to bill for the IOL to the physician. The kickback risk is the clearest when the procedure is billed to Medicare. However, even if premium IOLs are implanted in self-pay or commercial patients and the surgery center does not receive a facility fee from Medicare, if the ophthalmologist refers patients to the surgery center for Medicare-covered services, a rebate to the physician or giving the physician the right to sell the lens could be construed as a kickback for referral of other services reimbursed by Medicare.

For these reasons, surgery centers should strongly consider being solely responsible for supplying and billing for premium IOLs inserted at the surgery center. It is safest when the physicians do not supply or purchase the premium IOL or bill the patient for the cost of the premium IOL (marked-up or otherwise).

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