Be Vigilant – and Insistent – When Having to Scan Twice

Be Vigilant – and Insistent – When Having to Scan Twice

Most of my articles are intended to impart information, but this is a hybrid because I am hoping to hear from you about your experiences with audits of breast ultrasonography. You may have seen a recent story by Nina Youngstrom, published in the Report on Medicare Compliance in January 2023. Her story explained that their Medicare contractors were auditing breast ultrasounds, and in particular CPT® Code 76641.

National Government Services (NGS) has a Local Coverage Determination (LCD) on breast imaging and breast echography.

One of the things that makes this issue particularly interesting is that there are some states, including Illinois and New York, that have state laws requiring insurance companies to cover preventive breast screening when ordered by a physician. However, recipients of these Targeted Probe-and-Educate (TPE) letters feel that the Medicare Administrative Contractors (MACs) are suggesting that routine ultrasounds of dense breast tissue are inappropriate. They report that, in essence, Medicare is challenging care that is required for all non-Medicare patients. But I think that if we analyze the issue closely enough, there is a way to harmonize the LCD and state law – though I am not sure that contractors are properly interpreting the LCD.

The NGS LCD says “Breast ultrasonography should not be routinely used along with diagnostic mammography. Ultrasonography may be indicated in addition to diagnostic mammography for the evaluation of some ambiguous mammographic or palpable masses or focal asymmetric densities that may represent or mask a mass.” As I understand it, the issue is arising in patients with denser breast tissue, where the mammogram might not be able to sufficiently penetrate it.

I think some of the problem involves semantics.

Some radiologists are hesitant to label an initial mammogram as “inconclusive.” That is often a magic word used to justify additional scanning. I don’t fully understand why physicians are shying away from that label, but I do know that if a radiologist feels that a second scan is required because the first scan isn’t definitive, labeling that scan as “inconclusive” seems entirely appropriate, and a good way to avoid needless denials. 

When physicians avoid the “inconclusive” label, reviewers can understandably conclude that additional imagery is unnecessary.

I want to emphasize that the LCD does not categorically prevent coverage for ultrasounds. It includes a variety of “mays.” Using ultrasound regularly for patients with dense tissue is not the same as using it routinely. I believe that if your position is “If the patient has tissue that is dense enough that we’re worried about detecting cancer, we perform an ultrasound,” you are acting consistently with the LCD.

Of course, as we’ve discussed in the past, LCDs are not binding. Administrative law judges are not required to follow them. If your physicians feel that an ultrasound was medically necessary, I would never refund money off of an interpretation of an LCD.

The bottom line is that as long as a radiologist feels that quality care requires an ultrasound to rule out cancer, I would advise the physician to order it, despite any audits. To the extent a MAC argues that routinely using ultrasound in dense breasts is the same as routinely using ultrasound generally, I would aggressively challenge them.

And if you are seeing either audits or TPEs on this topic, please send me an email. In closing, talk to your physicians about how they are describing their imaging. If they report hesitancy to describe results as inconclusive, ask them why, because if there is fear that the density of tissue creates the risk of a hidden mass, the mammogram is, in fact, indeterminate. If the documentation explains why the ultrasound was medically necessary, I’m confident you can obtain coverage – even if you have to appeal to get there.

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David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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