Is Speech Recognition a Kickback? Maybe....

In a post from last year, I asked this question on behalf of a reader. When posted on AuntMinnie.com as well, there was nothing but laughter. To repeat the original query,

Do you know if anyone has ever tried to construe the adoption of voice recognition technology as a kickback to the hospital in violation of federal antikickback statutes? It would seem to me that transcription services are traditionally provided for free by the hospital to hospital-based physicians (except of course the cardiologists and administrators don’t have to use it!) and that the cost of transcription is covered by the technical fee collected by the hospital. In essence we are providing free services to the hospital in return for a hospital contract. I wonder what the lawyers would say.

Well, writing in the current JACR, Richard Duszak Jr., M.D., restates the question, and comes to some disturbing conclusions. At best, this is a gray area, and at worst, it is indeed a kickback, subject to some rather strong penalties.

According to CMS,

“[N]o one involved with the processes of developing either the radiologist or physician fee schedule made a decision that would have specifically placed transcription costs in the [professional component payment]” [4]. And, even more definitively, “there is no question that costs incurred by the hospital for the transcription of interpretations are allowable operating costs for the purposes of intermediary payments” [5]. When hospitals are paid by Medicare intermediaries for the technical part of imaging services, historical documents indicate that they are unequivocally being paid for the costs of associated transcription services.

Keep in mind that

The federal antikickback statute makes it illegal to solicit, receive, offer, or pay any remuneration for referring a service for which payment is made by a federal health care program.

Because hospitals are reimbursed by Medicare for transcription expenses as part of their normal technical charges, they potentially run afoul of the antikickback law if they “double dip” and collect those same transcription costs from their radiologists, who necessarily receive referrals of Medicare patients from those hospitals. In such a scenario, the amount charged to radiologists for transcription costs could not possibly represent fair market value, because those transcription services are already being reimbursed by Medicare.

Now, enter Speech (OK, Voice) Recognition:

Depending on the specific circumstances of implementation, VR technology also creates antikickback concerns with regard to radiologists’ making in-kind payments to hospitals for transcription services. Even advocates of VR technology acknowledge that “it transfers a task to radiologists that previously was performed by transcriptionists” [11]: work for which Medicare is already paying the hospital. That transfer of “secretarial duties” comes at the very real cost of increased work time to radiologists [12].

If . . . radiologists are forced by a hospital, as a condition of maintaining their professional services contracts (and hence continuing Medicare referrals), to assume all the secretarial duties of now laid off hospital transcriptionists, jeopardy more likely exists.

This is called double-dipping, and it is a big no-no. So, keep this all in mind if you feel forced to accept SR in your practice.