BILL NUMBER:  S310

 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 8. Subdivision 8 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 1966, 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 1966 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 80% 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 20% 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

 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.