The vague new requirements for independent diagnostic testing facilities contained in the 2007 Physician Fee Schedule position imaging centers on uncertain ground

It’s now official: the good, the bad, and the downright ugly. Actually, I take that back. There really is nothing good in this report at all. And come to think of it, it is even uglier upon a second look.

After a great deal of speculation about what CMS would etch into its new independent diagnostic testing facility (IDTF) requirements for 2007, the definitive list has now been released. Included among the prohibitions and mandates is something onerously described as the “Non-Solicitation Standard.” In this new rule (which currently applies only to IDTFs but will likely emerge sometime later as a rule for all imaging providers, so hold your schadenfreude moment if you are in a radiology practice), an IDTF must “agree not to directly solicit patients, which includes, but is not limited to, a prohibition on telephone, computer, or in-person contacts.”

Thankfully, the National Coalition for Quality Diagnostic Imaging Services managed to get CMS to clarify that it is not attempting to prohibit public advertising (such as television, radio, and direct mail) of its services to beneficiaries, physicians, and other suppliers. The standard is apparently designed to prohibit direct, person-to-person solicitation of the most offensive kind. Fair enough.

But why does this not make me feel better about such an outlandish restriction on an age-old method of business and product differentiation? Probably because of that little slippery slope of a phrase included in the rule: “but is not limited to.” This is an invitation to later interpreters of the rule to apply whatever standard the prevailing wisdom of the moment decides is considered “solicitation.” And, while they are at it, why not simply expand the restriction from patients to other customers, such as referring physicians and payors?

In a laundry list of preposterous rate cuts, new supervising physician standards, and a host of others designed to increase the regulation of IDTFs, the nonsolicitation standard can be described only as beyond the pale. Although the immediate impact on marketing programs and representatives doing their best to build referrals through ethical and legal strategies probably will not amount to much, the hint of a possible future review by an OIG staffer, who likely will be singularly unqualified to make such a distinction, is enough to give one pause. What will qualify an OIG staffer to make such subtle distinctions between the myriad elements of the marketing mix and which of these has somehow crossed the line into the dreaded direct solicitation? This is dangerous stuff, and there is cause for concern for all of those trying to run a legitimate imaging center business. Is a call-back card for an annual mammogram considered direct solicitation? How about a direct mail brochure describing the benefits of MDCT for screening vascular disease? Or a vein health booth at the local health fair? It seems to me that IDTFs are saving lives in these examples, along with many others that likely will be questioned.

So, What Do We Do Now?

My immediate recommendation is to develop a written marketing compliance program that includes a comprehensive nonsolicitation section. By developing such a program and training all of the firm’s marketers to work within it, my view is that an IDTF will be able to draw its own distinction between that which is acceptable to CMS and that which is out of compliance. By defining itself, the center will have taken the initiative to outline the parameters of what constitutes direct solicitation, thereby signaling to all employees, competitors, customers, and future regulators that it takes its marketing seriously. It also will likely deflect the possibility that a disgruntled employee will file a qui tam (whistle-blower) lawsuit by informing the regulators that the center has been doing something illegal. This is a much more likely possibility than the OIG advertising police showing up at your door unannounced and proceeding to read through your brochures for suspect language.

Just as with any other elements of the center’s compliance programs—such as ensuring that there are no inducements to physicians for referrals—scrutiny of this new restriction can be managed by building a wall around the center’s legitimate marketing programs and those that could be interpreted otherwise. Similarly, should the center be inspected at some future date, it will be important to show the OIG that a compliance program is active within the center, and any outlier among the marketing staff or any single element of the program should not result in elimination of the entire marketing program. As always, the compliance program by its very nature will offer some measure of protection against overly aggressive or punitive review.

The second recommendation is to review all of the words that you use in your various marketing materials to ensure that you are using professional language that can both be persuasive in differentiating your services from those of your competitors and be subtle in terms of direct solicitation. This is an art best left to professional writers, and an imaging center would be well advised not to take lightly the fact that its words can and likely will be scrutinized. This is not all bad. As someone who spends a lot of time thinking about the power and meaning of words, I can assure you that most organizations could do a better job of polishing their advertising copy to make it tighter, more to the point, and less objectionable. The old maxim that advertising is designed to “irritate, irritate, and irritate” has caused many people to fashion themselves as very good professional irritators.

Business people have an inherent right to develop a message about their business and communicate it professionally to its various intended audiences. This essential underwriting of an efficient distribution of goods and services in our capitalistic, free market economy has been among the key elements of what makes our economic system the envy of the entire world. Does it get abused? Absolutely. Are health care businesses required to be more responsible than the average enterprise? Certainly. But the marketplace has done a very good job of weeding out unscrupulous providers and will continue to do so, without the marked increase in regulatory activity designed to irritate, irritate, and irritate.

Curtis Kauffman-Pickelle is founding editor and publisher of  Axis Imaging News and is currently CEO of the Imaging Center Institute. He can be contacted at .