September 27, 1993
Mr. Linwood Jones
Legislative Research Division
Suite 545, Legislative Office Building
Raleigh, North Carolina 27603-5925
Re: Advisory Opinion; G.S. 90-407
Dear Linwood:
Thank you for forwarding the inquiry you received from one of our legislators.
I will preface this advisory opinion with a recitation of presumptions from the question you
submitted:
1) There is no dispute that the physician is a "health care provider" as defined by G.S. 90-405(7);
2) There is no dispute that the physician has an "investment interest" as defined by G.S. 90405(9) in one of three private nursing homes in the county;
3) Prescription of nursing home services is a designated health care service" as defined in G.S.
90-405(3); and
4) The patients at issue in this question are patients who receive public assistance benefits,
Medicaid, through the county and the decision to place a patient in a nursing home is the decision
of the county.
Given the foregoing, if the physician prescribes nursing home care for some of his patients
receiving Medicaid, but does not recommend to the county a particular nursing home facility, is
he prohibited from continuing this practice under the provisions of Senate Bill 8?
The answer to this question hinges on whether the act of prescribing nursing home care for a
patient to the county constitutes a "referral" as defined by G.S. 90-405(11) and whether the
county is a "designated health care provider" or entity that provides a designated health care
service. The definition reads:
"(11) ‘Referral’ means any referral of a patient for designated health care services, including,
without limitation:
- a.
- The forwarding of a patient by one health care provider to another health care provider or to an entity that provides any designated health care service; or
- b.
- The request or establishment of a plan of care by a health care provider, which includes the provision of designated health care services. ‘Referral’ does not mean any designated health care service or any referral to an entity for a designated health care service which is provided by, or provided under the personal supervision of, a sole health care provider or by a member of a group practice to the patients of that health care provider or group practice."
The facts of this scenario provide that the nursing home facilities are private rather than owned and operated by the county. That leads to the conclusion that the county is not a health care provider or an entity that provides designated health care services as contemplated in this definition since it does not own and operate the nursing homes. More importantly, the physician does not designate a particular facility as a part of "a plan of care" for the patient. That decision rests solely with the county authorities. Therefore, the prescription of nursing home care for patients in this case are not "referrals" as defined and would not be prohibited by the new law.
I hope this provides the member with the information he or she needs. If this office can be of additional assistance, please do not hesitate to contact us.
John R. McArthur Chief Counsel