Today, health care fraud is all over the news. There undoubtedly is fraud in health care. The same is true for every business or endeavor touched by human hands, e.g. banking, credit, insurance, politics, etc. There is no question that health care providers who abuse their position and our trust to steal are a problem. So are those from other professions who do the same.

Why does health care fraud appear to get the ‘lions-share’ of attention? Could it be that health care fraud is the perfect vehicle to drive agendas for divergent groups where taxpayers, health care consumers and health care providers are dupes in a health care fraud shell-game operated with ‘sleight-of-hand’ precision?

Take a closer look and one finds this is no game-of-chance. Taxpayers, consumers and providers always lose because the problem with health care fraud is not just the fraud, but it is that our government and insurers use the health care fraud problem to further agendas while at the same time fail to be accountable and take responsibility for a health care fraud problem they facilitate and allow to flourish.

1. Astronomical Health Care Fraud Estimates

What better way to report on fraud then to tout health care fraud cost estimates, e.g.

“Fraud perpetrated against both public and private health plans costs between $72 and $220 billion annually, increasing the cost of medical care and health insurance and undermining public trust in our health care system… It is no longer a secret that fraud represents one of the fastest growing and most costly forms of crime in America today… We pay these costs as taxpayers and through higher health insurance premiums… We must be proactive in combating health care fraud and abuse… We must also ensure that law enforcement has the tools that it needs to deter, detect, and punish health care fraud.” [Senator Ted Kaufman (D-DE), 10/28/09 press release]

The General Accounting Office (GAO) estimates that fraud in healthcare ranges from $60 billion to $600 billion per year – or anywhere between 3% and 10% of the $2 trillion health care budget. [Health Care Finance News reports, 10/2/09] The GAO is the investigative arm of Congress.

The National Health Care Anti-Fraud Association (NHCAA) reports over $54 billion is stolen every year in scams designed to stick us and our insurance companies with fraudulent and illegal medical charges. [NHCAA, web-site] NHCAA was created and is funded by health insurance companies.

Unfortunately, the reliability of the purported estimates is dubious at best. Insurers, state and federal agencies, and others may gather fraud data related to their own missions, where the kind, quality and volume of data compiled varies widely. David Hyman, professor of Law, University of Maryland, tells us that the widely-disseminated estimates of the incidence of health care fraud and abuse (assumed to be 10% of total spending) lacks any empirical foundation at all, the little we do know about health care fraud and abuse is dwarfed by what we don’t know and what we know that is not so. [The Cato Journal, 3/22/02]

2. Its Fraud Because We Say It is Fraud

Health care fraud is defined by NHCAA as an intentional deception or misrepresentation that the individual or entity makes knowing that the misrepresentation could result in some unauthorized benefit to the individual, or the entity or to some other party. The most common kind of fraud involves a false statement, misrepresentation or deliberate omission that is critical to the determination of benefits payable. The most common fraudulent acts include, but are not limited to

1) Billing for services, procedures and/or supplies that were never provided or performed;

2) Intentionally misrepresenting any of the following, for purposes of obtaining a payment – or a greater payment – to which one is not entitled: a) Nature of services, procedures and/or supplies provided or performed; b) Dates on which services and/or treatments were rendered; c) Medical record of service and/or treatment provided; d) Condition treated or the diagnosis made; e) Charges for services, procedures and/or supplies provided or performed; f) Identity of provider or recipient of services, procedures and/or supplies.

3) The deliberate performance of medically unnecessary services for the purpose of financial gain.

This definition and common fraudulent acts seem clear enough, right? Not so fast! Undoubtedly, providers billing for services they did not provide should be clearly evident as fraud. Unfortunately, the same can not be said for remaining acts revealed by the NHCAA. In fact, the individual circumstances of the involved provider activities may indicate it is not fraud at all that the provider did not intentionally misrepresent material fact but followed instructions of payors (see #3).

The allegation of fraud is presented at an alarming rate in today’s enhanced health care fraud investigative climate by insurers’ armed with allegations that providers did not document provided services well enough in clinical records, even in those cases where insurers’ know, or should have known, the services were in fact provided by talking with the patient (their insured) – in such cases the claim for services rendered is not fraud but might be non-payable due to technical deficiencies. Unfortunately, this allegation is not brought, for the most part, due to proactive claims evaluation by insurers but is brought after the provider has been targeted for audit or investigation of health care claims already paid.

And, the most troubling might be insurers alleging that the provider engaged in fraud by performing medically unnecessary services based solely on reports received from hired-guns retained to find reasons for not paying claims. Typically, these hired-guns, or peer reviewers, do not see the patient but offer subjective opinions following review of records on the care and treatment already rendered to patients by another provider.

NHCAA indicates that the variety of fraudulent reimbursement and billing practices in the health care area is potentially infinite. The same can be said for the mischief that insurers can engage in under the guise of health care fraud fighting.

3. Health Care Standards

The laws & rules governing health care – vary from state to state and from payor to payor – are extensive and very confusing for health care providers and others to understand as they are written in legalese and not plain speak.

Healthcare providers use specific codes to report conditions treated (ICD-9) and services rendered (CPT-4 and HCPCS). These codes are used when seeking compensation from payors for services rendered to patients. Providers are instructed by these coding systems to report the code or codes that accurately reflect their services. Although created to universally apply to facilitate accurate reporting to reflect providers’ services, many insurers instruct providers to report codes based on what the insurer’s computer editing programs recognize – not on what the provider rendered. Further, practice building consultants instruct providers on what codes to report to get paid – in some cases codes that do not accurately reflect the provider’s service.

Healthcare Consumers know what services they receive from their doctor or other health care provider but may not have a clue as to what those billing codes or service descriptors mean on explanation of benefits received from insurers. This lack of understanding may result in consumers moving on without gaining clarification of what the codes mean, or may result in some believing they were improperly billed. The multitude of insurance plans available today, with varying levels of coverage, ad a wild card to the equation when services are denied for non-coverage – especially if it is Medicare that denotes non-covered services as not medically necessary.

4. Proactively addressing the health care fraud problem

The government and insurers do very little to proactively address the problem with tangible activities that will result in detecting inappropriate health care claims before they are paid. Indeed, payors of health care claims proclaim to operate a payment system based on trust that health care providers bill accurately for health care services rendered, as they can not review every claim before payment is made because the healthcare reimbursement system would shut down.

They claim to use sophisticated computer programs to look for errors and patterns in health care claims, have increased pre- and post-payment audits of selected health care providers to detect fraud, and have created consortiums and task forces consisting of law enforcers and insurance investigators to study the problem and share health care fraud information. However, this activity, for the most part, is dealing with activity after the claim is paid and has little bearing on the proactive detection of health care fraud.

5. Exorcise health care fraud with the creation of new laws

The government’s reports on the health care fraud problem are published in earnest in conjunction with efforts to reform our health care system, and our experience shows us that it ultimately results in the government introducing and enacting new laws – presuming new laws will result in more fraud detected, investigated and prosecuted - without establishing how new laws will accomplish this more effectively than existing laws that were not used to their full potential.

With such efforts in 1996, we got the Health Insurance Portability and Accountability Act (HIPAA). It was enacted by Congress to address insurance portability and accountability for patient privacy and health care fraud and abuse. HIPAA purportedly was to equip federal law enforcers and prosecutors with the tools to attack health care fraud, and resulted in the creation of a number of new health care fraud statutes, including: Health Care Fraud, Theft or Embezzlement in Health Care, Obstructing Criminal Investigation of Health Care, and False Statements Relating to Health Care Fraud Matters.

In 2009, the Health Care Fraud Enforcement Act appeared on the scene. This act has recently been introduced by Congress with promises that it will build on fraud prevention efforts and strengthen the governments’ capacity to investigate and prosecute waste, fraud and abuse in both government and private health insurance by sentencing increases; redefining health care fraud offense; improving whistleblower claims; creating common-sense mental state requirement for health care fraud offenses; and increasing funding in federal antifraud spending.

According to mainjustice.com at a recent Congressional hearing following introduction of the above Act Sen. Arlen Specter stated “We have seen an increasing number of sentences of fines for where there is really serious egregious conduct. Fines have just added to the cost of doing business.” Sen. John Cornyn stated “I don’t know how we can expect [The Centers for Medicare and Medicaid Services] to do a better job, when out of the 4.4 million claims you get every day you can only review 3 percent of them. I’m not sure we are ever going to have enough good guys to outnumber the bad guys in this.” And, Sen. Chuck Grassley stated “I find it troubling that some cases [1,040 pending qui tam lawsuits waiting for the DOJ to sign on] are lingering for 36 months.”

Undoubtedly, law enforcers and prosecutors MUST have the tools to effectively do their jobs. However, these actions alone, without inclusion of some tangible and significant before-the-claim-is-paid actions, will have little impact on reducing the occurrence of health care fraud.

Indeed, Hope Yen writing in the Washington Post (Report details billions lost in Medicare fraud, 11/16/09) on excerpts of a new federal report on Medicare fraud, reported that while noting several new anti-fraud efforts were beginning, the government report makes clear that ‘aggressive actions’ to date aimed at reducing improper payments had yielded little improvement.

What’s one person’s fraud (insurer alleging medically unnecessary services) is another person’s savior (health care provider administering tests to defend against potential lawsuits from legal sharks). Is tort reform a possibility from those pushing for health care reform? Unfortunately, it is not! Support for legislation placing new and onerous requirements on health care providers in the name of fighting health care fraud, however, does not appear to be a problem.

If Congress really wants to use its legislative powers to make a difference on the health care fraud problem they must think outside-the-box of what has already been done in some form or fashion. Focus on some front-end activity that deals with addressing the fraud before it happens. The following are illustrative of steps that could be taken in an effort to stem-the-tide on health care fraud and abuse:

- DEMAND all payors and health care providers, suppliers and others only use approved coding systems, where the codes are clearly defined for ALL to know and understand what the specific code means. Prohibit anyone from deviating from the defined meaning when reporting services rendered (providers, suppliers) and adjudicating claims for payment (payors and others). Make violations a strict liability issue.

- REQUIRE that all submitted health care claims to public and private insurers be signed or annotated in some fashion by the patient (or appropriate representative) affirming they received the reported and billed health care services. If such affirmation is not present claim isn’t paid. If the claim is later determined to be problematic investigators have the ability to talk with both the health care provider and the patient…

- REQUIRE that all claims-handlers (especially if they have authority to pay claims), consultants retained by insurers to assist on adjudicating claims, and health care fraud investigators be certified by a national accrediting company under the purview of the government to exhibit that they have the requisite understanding for recognizing health care fraud, and the knowledge to detect and investigate the fraud in health care claims. If such accreditation is not obtained, then neither the employee nor the consultant would be permitted to touch a health care claim or investigate suspected health care fraud.

- PROHIBIT public and private payors from asserting fraud on health care claims previously paid where it is established that the payor knew or should have known the claim was improper and should not have been paid. And, in those cases where fraud is established in paid claims any monies collected from providers and suppliers for overpayments be deposited into a national account to fund various health care fraud and abuse education programs for consumers, insurers, law enforcers, prosecutors, legislators and others; fund front-line investigators for state health care regulatory boards to investigate health care fraud in their respective jurisdictions; as well as funding other health care anti-fraud related activity.

- PROHIBIT insurers from raising premiums of policyholders based on estimates of the occurrence of fraud. Require insurers to establish a factual basis for purported losses attributed to fraud coupled with showing tangible proof of their efforts to detect and investigate health care fraud, as well as not paying fraudulent claims.

6. Insurers are victims of health care fraud

Insurers, as a regular course of business, offer reports on health care fraud to present themselves as victims of fraud by deviant health care providers and suppliers.

It is disingenuous for insurers to proclaim victim-status when they have the ability to review claims before they are paid, but choose not to because it would impact the flow of the health care reimbursement system that is under-staffed. Further, for years, insurers have operated within a culture where fraudulent claims were just a part of the cost of doing business. Then, because they were victims of the putative fraud, they pass these losses on to policyholders in the form of higher premiums (despite the duty and ability to review claims before they are paid). Do your premiums continue to rise?

Insurers make a ton of money, and under the cloak of fraud-fighting, are now keeping more of it by alleging fraud in health care claims to avoid paying legitimate claims, as well as going after monies paid on claims for services performed many years prior from providers too petrified to fight-back. Additionally, many insurers, believing a lack of responsiveness by law enforcers, file civil suits against health care providers and health care entities alleging fraud.

7. Increased investigations and prosecutions of health care fraud

Purportedly, the government (and insurers) have assigned more people to investigate health care fraud, are conducting more investigations, and are prosecuting more health care fraud offenders.

With the increase in the numbers of health care fraud investigators, it is not uncommon for law enforcers assigned to work health care fraud cases to lack the knowledge and understanding for working these types of cases. It is also not uncommon that law enforcers from multiple agencies expend their investigative efforts and numerous man-hours by working on the same fraud case.

Law enforcers, especially at the federal level, may not actively investigate health care fraud cases unless they have the tacit approval of a prosecutor. Some law enforcers who do not want to work a case, no matter how good it may be, seek out a prosecutor for a declination on cases presented in the most negative light.

Health Care Regulatory Boards are often not seen as a viable member of the health care fraud investigative team. Boards regularly investigate complaints of inappropriate conduct by licensees under their purview. The major consistency of these boards are licensed healthcare providers, typically in active practice, that have the pulse of what is going on in their state.

Insurers, at the insistence of state insurance regulators, created special investigative units to address suspicious claims to facilitate the payment of legitimate claims. Many insurers have recruited ex-law enforcers who have little or no experience on health care matters and/or nurses with no investigative experience to comprise these units.

Reliance is critical for establishing health care fraud, and often a major hindrance for law enforcers and prosecutors on moving fraud cases forward. Reliance refers to payors relying on information received from health care providers to be an accurate representation of what was provided in their determination to pay claims. Health care fraud issues arise when providers misrepresent material facts in submitted claims, e.g. services not rendered, misrepresenting the service provider, etc.

Increased health care fraud prosecutions and financial recoveries? In the various (federal) prosecutorial jurisdictions in the United States, there are differing loss- thresholds that must be exceeded before the (illegal) activity will be considered for prosecution, e.g. $200,000.00, $1 million. What does this tell fraudsters – steal up to a certain amount, stop and change jurisdictions?

In the end, the health care fraud shell-game is perfect for fringe care-givers and deviant healthcare providers and suppliers who jockey for unfettered-access to health care dollars from a health care payment system incapable or unwilling to employ necessary mechanisms to appropriately address health care fraud – on the front-end before the claims are paid! These deviant providers and suppliers know that every claim is not looked at before it is paid, and operate knowing that it is then impossible to detect, investigate and prosecute everyone who is committing health care fraud!

Lucky for us, there are countless experienced and dedicated professionals working in the trenches to combat health care fraud that persevere in the face of adversity, making a difference one claim/case at a time! These professionals include, but are not limited to: Health Care Providers of all disciplines; Regulatory Boards (Insurance and Health Care); Insurance Company Claims Handlers and Special Investigators; Local, State and Federal Law Enforcers; State and Federal Prosecutors; and others.

Fox uses kinder, gentler approach to spinal adjustments

Susan Schell
of the Gateway
Published: 01:55PM July 15th, 2009


A poster in Dr. Greg Fox’s chiropractic office shows an underwater view of a gigantic iceberg with the usual tiny portion sticking above water, the only part visible to the human eye. The poster reads: “Symptoms are misleading. We find the hidden cause.”

That’s Fox’s general philosophy.

“Chiropractic is not just about backaches and headaches, although it’s good at resolving those issues at a low cost,” Fox said. “It gets to the core of the problem and helps the body to function better so you have less doctor visits. Dis-ease leads to disease. We find the hidden causes of health problems.”

Fox said most medications help ease pain, but they don’t cure an illness.

“What we’re working with is the nervous system, which is the body’s communication center,” he said. “You raise the body’s functioning and stay focused on improving that function and let the body take care of itself.”

Fox specializes in the Koren Specific Technique, a method that involves gentle yet powerful adjustments that don’t use twisting, turning, cracking or popping of joints. The method can correct subluxation, a distortion in the spine and body structure that can cause serious nerve stress.

Fox has been practicing for 32 years. His wife, Pam Fox, is the office manager.

“I’ve seen so many miracles here,” she said. “You can do a scan (on a patient) and see all the nerves lit up. There’s that specialty of being able to connect the nerves that feed the vital organs. It’s a science predicated on the vertebrae being misaligned. When that happens, it’s like a dimmer switch, and the body’s communication gets interrupted on all different levels.”

Pam Fox said patients come from all over to see her husband. She recalled when a baby came in and couldn’t move his head.

“As soon as he was adjusted, he could move his head and he started breathing a lot easier,” she said.

“Babies are fun because they respond so quickly,” Greg Fox said. “They don’t come in with a lot of baggage.”

Fox said chiropractors often see patients who have tried everything else and come to them as a last resort.

“They’ve tried all the conventional methods, like drugs and surgery, and that’s upside down,” he said. “The vast majority don’t try a natural approach. It makes sense that people should try the least invasive forms of therapy first.”

“I’ve seen people who’ve had back surgery that can’t walk right,” Pam Fox said. “When you have surgery, it’s about 50 percent successful. But what about the other 50 percent?”

Sharon Browning has been seeing Fox since 1994, and she swears that chiropractic treatment has greatly improved her life, as well as her husband’s.

“He’s a miracle worker,” Browning said. “I felt 85 percent better that first time I was here.”

Browning said her husband had slowed down and was always grouchy — a factor he contributed to old age. After prodding from his wife, he finally saw Fox.

“He completely changed after his treatments,” Browning said. “This guy’s happy again.”

“When someone is in chronic pain, it changes their personality,” Pam Fox said. “We’re living longer than ever before. We need to ask, ‘How do we live those extra years full of vitality and not be a burden?’ In this economy, we can’t afford to be sick. We want people to be able to continue to do what they love.”


Fox Chiropractic Wellness Center

Dr. Greg Fox’s office is located at 3715 56th Ave. NW in Gig Harbor. For more information, call 253-851-5138.

By Dr. Kenneth Best, D.C., Community Contributor -- Published: July 15, 2009


Dr. Ken Best Eliminates Harmful Belief Systems and Rewrites Patients’ Lives with Thetahealing. Dr. Kenneth Best, D.C. is a Los Angeles based chiropractor, who also specializes in Applied Kinesiology ("AK") and Thetahealing™. Dr. Best has healed thousands of patients through combinations of physical and energetic therapy and spiritual guidance to change the inner being. Dr. Best has developed a program utilizing the tools for inner change, as a result of these healings, called “Rewriting Your Life™.” Often called on by the entertainment industry for his abilities, Dr. Best has been the onset chiropractor for 24, Alias, Brothers and Sisters, Minority Report and has shared his expertise with the viewers of Extra, The Doctors, KTLA5 Morning News, KCAL News, and Fox 11 News in Los Angeles.


Dr. Kenneth Best D.C. of ManyLevels™ uses Thetahealing™: a revolutionary technique that heals patients physically, mentally and spiritually. Dr. Best uncovers patients’ core belief systems or belief programs that often function as obstacles, restricting the patient from achieving certain goals and even causing pain and illness. Dr. Best using Thetahealing™ taps into the creative force to rewrite these negative core beliefs into positive ones. Thetahealing™ is a process of connecting with the creative force and using our own theta brainwaves to communicate with the cells of the body on deeper level of consciousness. The result is a remarkable improvement in the patient’s health and well being.


Recognizing that belief systems control most aspects of our lives, Thetahealing™ roots out the limiting belief systems (core beliefs) that cause us harm and keep us from achieving our goals. Dr. Best utilizes the ‘theta’ brain state to pull and correct these negative core beliefs. Core beliefs are both conscious and unconscious belief systems; they can block a person’s ability to succeed in areas which are important to them (love, career, health, etc.) Thetahealing™ replaces these negative core beliefs with a belief system to support the goals and needs of the person. This can be useful for anything from the removal of a disease to improved mental health and well-being.


“If we think of our brains like a computer that maintains our body, shapes our perceptions and reacts to the outside world, then it is our core beliefs which function as the software,” said Dr. Best. “How many of us hear ourselves saying, ’I’m so stupid’?” asked Dr. Best. “This is a common thing we will often hear people saying, yet this type of self-talk is an indicator of a subconscious negative core belief. Even though on the surface we believe ourselves to be smart, deep down in our psyche we may hold a core belief that we are stupid and it can influence our decision making processes, lifestyle choices and hold us back from living the way we want to live,” concluded Dr. Best.


It is no secret that an overwhelming majority of Americans believe in God or a higher power (over 90% according to a 2006 CBS News survey). Thetahealing™ looks to this higher power, called the Creative Force, or God, to intervene on behalf of the patient through the healer to help rewrite these core belief systems. Dr. Best, through prayer and consciously accessing a 'theta state', works with the co-creative force of God by asking God to find the dysfunction or 'dis-ease' in the body, to show us the cause and finally, to correct the problem. The practitioner is there to be a witness to the changes made in the body. Recurring illness and disease can be due to several reasons, among them being core belief issues that manifest the illness originally or constant exposure to toxins.


These core belief programs come from four sources:

1. Subconscious Programs: These types of programs can get in our subconscious as a child; they also can come from repetition or poor discernment later in life - i.e. believing everything about yourself that other people say about you.


2. Genetic programs: These are programs involving everything from eye color, to the way we talk, these are intuitions and there are programs similar to subconscious programs above. Genetic programs come from your parents DNA and their parents DNA and so on. While many of these may have been necessary hundreds of years ago, they often serve to prevent people from enjoying life in the present day. For example "I need to hide" "God is a punishing God", "I'm a sinner, I need to be punished", "I don't deserve to live". Such programs could be a reason a person's body has accepted a disease like cancer. These programs as well as deep genetic programs tend to be the causative effect of predisposing our body to an illness or a disease. These programs may need to be cancelled in order for the body to rid itself of the disease.


3. Deep Genetic Programs: Are similar to genetic programs but go much further back in the DNA and may refer to what is termed as a 'past life'. A person who subconsciously remembers a past life may be picking up on their own genetic line which they lived then or it may be a ‘real’ past life which is not related genetically. An atrocity that happened to this person in their past life may be manifesting itself as a negative core belief system today.


4. Soul Level Programs: These are deep programs which are carried with the soul. Most of the programs that influence our lives are not on the soul level, but if they are they can have profound effects on our lives and health. For example, some souls may feel they are disconnected from the source of all things through some experience, and as a result when testing the person the program “I am abandoned by God” shows up. This can affect them on a very deep level, feeling abandoned in all of their personal relationships as well.


About Dr. Kenneth Best, D.C. -- Dr. Kenneth Best, D.C. is a Los Angeles based chiropractor, who also specializes in Applied Kinesiology ("AK") and Thetahealing™. Dr. Best has healed thousands of patients through combinations of physical and energetic therapy and spiritual guidance to change the inner being. Dr. Best has developed a program utilizing the tools for inner change, as a result of these healings, called “Rewriting Your Life™.” Often called on by the entertainment industry for his abilities, Dr. Best has been the onset chiropractor for 24, Alias, Brothers and Sisters, Minority Report and has shared his expertise with the viewers of Extra, The Doctors, KTLA5 Morning News, KCAL News, and Fox 11 News in Los Angeles.


www.ManyLevels.com

NCLC 2005 Multi-Discipline Practices Resolution # 2 Multi-Discipline Practices (MDP)

Submitted by: ACA Insurance and Managed Care Committee

RESOLVED, that the American Chiropractic Association considers the following statement, “Multi-Discipline Practices,” official policy:

The American Chiropractic Association is the preeminent professional organization representing doctors of chiropractic in the United States. We have an obligation to our membership and to the profession as a whole to comment on topics that support or harm the profession and the public it serves. The topic of Multi-Discipline Practices (MDP) is receiving increased attention in the media, as a quality option for treating patients. The goal of this policy is to provide general education as opposed to specific legal or practice advice. It is incumbent upon each doctor of chiropractic to determine relevant state or federal laws, local board regulations and/or association recommendations that may be pre-emptive.

Background: The ACA fields an increasing volume of calls from doctors of chiropractic as to the advisability of entering into a MDP, and who also seek more detailed information on its acceptance, structure and operating philosophies. At the same time, ACA receives complaints from payers that certain arrangements appear to emphasize financial gain for providers rather than clinical appropriateness and the best interests of patients. With respect to providing education to both the chiropractic and insurance professions, ACA established a Fraud Sub-Committee under the Insurance and Managed Care Committee to research and provide commentary on this topic and others. This committee includes doctors in private practice from across the country, chiropractic leadership, insurance industry representatives, legal counsel, and consultants who have experience in this field. The committee recommends that doctors thoroughly review the following issues before entering into, being an employee of, or owning (in part or in total), a Multi-Discipline Practice.

NCLC 2005 Multi-Discipline Practices

These recommendations are not all-inclusive, but are intended to encourage thoughtful consideration and examination.

ACA RECOMMENDATIONS

Scope of Practice: The ACA encourages state associations and licensing/examining boards to adopt rules, regulations and laws that define the scope of practice for doctors of chiropractic and specifically comment on new and emerging practice arrangements including but not limited to Multi-Discipline Practices. Attention to the provision of ethical care and accepted treatment standards is important, as is identifying potentially illegal or unethical practice(s) that may constitute a danger to the health, safety and welfare of the public or that violate state statute. The Arizona Board of Chiropractic Examiners under section ARS 32-924(15) and a Chiropractic Practice Alert issued by the New York State Education Department Office of Professions http://www.op.nysed.gov/chiroalertmulti.htm may provide a model for discussion and action in other states.
It is also recommended doctors of chiropractic maintain a current license in good standing in the state in which they practice, and comply with the full letter and intent of that state’ s chiropractic scope of practice statute. All care provided by a doctor of chiropractic must fall under the applicable scope of practice regardless of who recommends or orders it.

Seek Expert Opinion and Counsel: To assist associations, boards and individual providers, ACA may be contacted for information on the National Association of Chiropractic Attorneys (NACA) as one source of possible legal counsel. There are many potentially complex legal issues that one should keep in mind before getting involved in a Multi-Discipline Practice. You may consider seeking legal advice on specific issues, including the following:

• All licensed healthcare providers are held to administrative, civil and criminal law considerations. In addition, state and federal law impacts compliance, formation, ownership structure and operational issues and may present certain complexities requiring the advice of an attorney specializing in professional limited liability (PLLC), Partnership (PLLP) and/or other arrangements.

• A federal health care criminal statute, along with related state health fraud statutes, criminalize any “ scheme or artifice” intended to obtain reimbursement from any healthcare plan or entity under false pretenses. Federal mail fraud concerns are included in this level of analysis, among other potential violations. (18 u.s.c. 1341, 1343)

• Another issue deals with legal concerns regarding federal and state anti-kickback laws. These are enforced for the most part by civil versus criminal sanctions. This requires a comprehensive review and careful consideration of “ safe harbor” provisions of the Civil Monetary Penalty Act (42 u.s.c. 1320a-7a).

• Legal prohibitions against self-referral for some healthcare services, or “ Stark Laws” (42 u.s.c. 1395 nn) are enforced through civil sanctions and relate to the provision of certain designated health care services. Mini-Stark laws may also exist at the state level and should be considered in any MDP analysis.

• The Internal Revenue Service (IRS) may also have specific compliance standards in the reporting of MDP revenue, investment gains and/or other financial situations.

Another source of advice may be the local or regional FBI (add website), or your state Attorney General’ s office as to types of activities in the healthcare industry that may prompt investigation or indictment. Currently we are not aware of any national MDP directives or policies employed by the FBI, but we understand that initiatives exist in certain states.

The Department of Health and Human Services Office of Inspector General 'Compliance Program for Individual and Small Group Physician Practices' (65 Fed. Reg. 59434, Oct. 5, 2000) found at http://oig.hhs.gov/authorities/docs/physician.pdf is also another source to consult, and your malpractice carrier may also have additional recommendations based on risk management protocols and actual claim experience.

Other Considerations and Questions to Answer

• Hiring Licensed and Unlicensed Providers/Professionals: Are you comfortable with providing oversight and supervision for licensed and unlicensed providers/professionals for services that are not included within the scope of practice for a doctor of chiropractic? Is this allowable by state law? Remember you are responsible for all acts of licensed and unlicensed employees and staff in your employ.

• Patient Supervision: Are you available and on-site with sufficient frequency and predictability to oversee patient care provided by all licensed and unlicensed employees and staff? Is continuity of patient care a major priority? In the event of an emergency, do you have sufficient oversight to direct employees and staff to appropriate action that protects patient safety and the best possible clinical outcome? Are there written compliance procedures in place and are they reviewed periodically for safety and confidentiality compliance? Remember that absentee ownership may create unnecessary risk and liability.

• Patient Referrals: If a patient is referred to you within a MDP owned by a physician other than a doctor of chiropractic are there delineated criteria for referring patients that may benefit from your specialized care?

Is the referring physician or provider familiar with chiropractic principles of care and fluent in your evaluation and diagnosis protocols, treatment and techniques, therapies or related services? Is the referred patient aware of the same principles and are they educated as to the expected results?

Is there an expected clinical outcome that is anticipated by making a referral either within or outside the MDP? Is there a plan of care and an expected time frame for results recorded and reported between providers and the patient?

Is there an adequate level of clinical documentation to support the referral and all care and treatment? What kind of written communication will the referring provider expect of the doctor of chiropractic, and do the DC’ s clinical records provide enough objective evidence to continue care?

Have steps been taken to steer clear of “automatic” referrals that lack clear and convincing evidence of the need for specialized care?

• Coding and Billing: Are all codes and billing procedures consistent with CPT definitions and policies, and do they not duplicate services the patient received prior to or during concurrent care at the MDP facility?

• Incident-to services: Incident to billing procedures can vary from carrier to carrier, and may be state specific. Always check with the particular plan to assess whether billing a chiropractic service as “incident to” another physician’s service is authorized.

Are evaluation and management services and/or consultation services appropriate and properly documented? Are the billed procedures separately identifiable? Do these services require significant patient time, assessment, cognitive skills and patient care management over and above existing recorded information on the patient? Under what situation does a patient require complex and/or multiple complex assessments by the same or different provider in the MDP facility?

Are your services billed under your tax ID number and not under a higher level or specialty ID number?

Are your services billed under your tax ID number, and not under the ID number of a higher-level specialty?

Remember, coding abuse—especially for frequently performed E/M services or for frequently billed complex services that are not clinically supported—is a red flag for investigation. Financial recovery, penalties and even license sanctioning can be an outcome of intentional coding irregularities. An argument for determination of intentional abuse is easily made when claims data shows an established business pattern.

CONCLUSION The above is a sampling of important considerations, and is provided to help promote the creation of innovative patient-focused healthcare entities that are lawful and ethical. ACA provides this education to help prevent undesirable situations that could inadvertently occur when there is inadequate analysis and preparation for new and emerging business collaborations. Related commentary may be found in ACA’ s Code of Ethics found at www.acatoday.com.

For more information please contact the ACA Office of Professional Development and Research at (703) 276-8800 or submit a written inquiry to the ACA IMC Fraud Sub-Committee at:

American Chiropractic Association 1701 Clarendon Blvd., Suite 200 Arlington, VA 22209

A compliance consultant was instructed that they should ensure that prior to their conducting practice audits for health care professionals that their client retain legal counsel and that the audit be performed ‘only’ under the direction and supervision of the client’s attorney.


This requirement of clients allows 1) the provider client a level of protection from outside investigative entities demanding the consultant’s audit report should they learn of the audit, and 2) the provider client to obtain the audit report from their counsel after counsel had the opportunity to review the audit findings to provide legal advice on how to respond to (substantiated) misconduct identified.


Unfortunately, the consultant did not follow the instructions and conducted practice audits for providers not represented by counsel, and this consultant found themselves in federal court, relevant to one particular client, faced with demands by federal law enforcers for the ‘unprotected’ audit report.