Ordering Portable X-Rays Under Medicare: An Update and Clarification

Abstract

Nurse practitioners (NP) are an integral part of the system for delivering care in a variety of settings. This is particularly the case in the delivery of primary care in office-based, outpatient and inpatient settings, particularly in long term care. Basic diagnostic tests, such as x-rays, are a routine part of the tools NPs use. NPs can, in fact, be authorized under Medicare to order much more advanced and expensive tests. However, a December, 2011 report, No. OEI-12-10-00190, issued by the Office of Inspector General of the U.S. Department of Human Services pointed out an anomaly in Medicare’s regulations specific to the ordering of portable x-rays, not only relating to ordering of this specific test by NPs but by any practitioners, including any physician, who is not a medical doctor or doctor of osteopathy. The report is called “Questionable Billing Patterns of Portable X-Ray Suppliers” (the “OIG Report”). The OIG report audited certain claims for 2009. In part, it focuses on specific language in a particular, older but currently effective Medicare regulation at 42 CFR, Section 486.106(a) which states, in part: “Portable X-ray examinations are performed only on the order of a doctor of medicine or doctor of osteopathy licensed to practice in the State.” The OIG identified that, during the 2009 year it audited, $6.6 million in portable x-ray claims was paid under Medicare by “nonphysicians” of which $4.3 million of such claims were ordered by NPs. The OIG recommended recoupment of this $6.6 million in 2009 claims. The OIG Reported focused solely on the narrow language of Section 486.106, which has remained unchanged for decades since the earliest iteration of the Medicare law, although the rule moved around the Code of Federal Regulations as the Medicare rules were updated. This language predates subsequent changes to the Medicare law to amend the definition of a “physi-