From international law firm Arnold & Porter LLP comes a timely column that provides views on current regulatory and legislative topics that weigh on the minds of today's physicians and health care executives.

For many years, co-management has been the source of discussion and disagreement within the ophthalmology community. In September 2015, the American Academy of Ophthalmology and American Society of Cataract and Refractive Surgery issued an update to the joint position paper on postoperative co-management issued in 2000. The update appeared to reflect a general consensus among all ophthalmology groups concerning proper guidelines for legal and ethical co-management. Just 2 months later, however, in November 2015, the Academy convened a new task force to review co-management and provide further refinement from the guidelines issued jointly with ASCRS. And, on Sept. 7 of this year, AAO issued a new version of these guidelines, which appears to retreat from standards articulated in the joint position paper issued last year. Apparently, ASCRS did not agree to join the Academy; on Aug. 26, ASCRS issued its own update. While both versions generally follow the language in the joint paper issued last year, there are some subtle difference that are worth noting.

We begin our analysis with the September 2015 update.

The most significant change from the original joint position paper reflected in the 2015 update was the inclusion of patient choice as a justification for co-management. Specifically, the 2015 joint guidance provided that circumstances in which co-management and transfer of care are appropriate include:

The patient requests and/or consents to a transfer of care for any other reasonably compelling personal consideration (e.g., comfort with the non-operating practitioner doctor/patient relationship) provided that the operating ophthalmologist is familiar with the non-operating practitioner and their qualifications (compliance with the scope of practice and state licensure).

While the new guidance issued by the Academy maintains patient prerogative as a justification for co-management, it is more restrictive and imposes a greater burden on the co-managing ophthalmologist. Compared with the 2015 update, under the new Academy guidance, this section now reads as follows:

The patient requests co-management or transfer of care to minimize cost, travel, loss of time spent traveling, or the patient's inconvenience, and gives informed written consent to the co-management agreement or transfer of care, and the operating ophthalmologist is familiar with the non-operating practitioner and is confident that the practitioner has the adequate training, skills and experience to accurately diagnose and treat the conditions that are likely to be presented as well as the willingness of the non-operating practitioner to seek advice from operating ophthalmologist whenever necessary.

As noted above, ASCRS apparently did not join the Academy in its revised statement. Instead, the 2016 position paper issued by ASCRS essentially retained the language from the joint guidance issued last year. Specifically, ASCRS recognizes patient prerogative as justification for co-management, but describes it as follows:

The patient consents to co-management or transfer of care to minimize cost of travel, loss of time spent traveling, or the patient’s inconvenience.

The patient consents to transfer of care for any other reasonably compelling personal consideration (e.g., comfort with the non-operating practitioner doctor patient relationship), provided that the operating ophthalmologist is familiar with the non-operating practitioner's skills, their qualifications, and their compliance with their state's specific scope of practice and licensure.

Therefore, while the Academy's guidance requires the patient to affirmatively request co-management or transfer or care, the ASCRS statement simply requires patient consent, ie, it does not require an affirmative request by the patient. Further, the Academy guidelines impose a higher burden on physicians by requiring them not only to be familiar with the non-operating practitioner, but also to be confident that the non-operating practitioner has the appropriate skills, training and experience required to provide postoperative care.

There is one additional distinction between the two guidelines worth noting. Specifically, consistent with other society guidelines as well as Medicare policy, both the Academy and ASCRS recognize that the financial compensation to the non-operating practitioner must follow certain guidelines, including the need for co-management fees to reflect the services provided. The Academy, however, adds a requirement that these services should be separately billed by the non-operating practitioner. That additional requirement is not included in the ASCRS guidelines.

It is important to understand that these documents reflect guidance from the respective societies and neither is legally binding on any ophthalmologist. Nevertheless, it is important for ophthalmologists to be aware of the standards articulated by their societies and to make a reasonable judgment in setting their own practice protocol. Further, it is important to understand that despite the differences reflected above, the Academy, ASCRS, as well as others that have previously taken positions on co-management, all agree that providing patient choice and assuring that co-management services are compensated on a fair market value basis are two fundamental hallmarks of legal and ethical co-management. Failure to follow either of these basic guidelines raises serious compliance risk.