NEWS AND VIEWS FOR PTs
A complimentary newsletter from
MAILLY INGLETT & BARMAK, LLC
Educators and Consultants to Physical Therapists
AUGUST, 2010 - Volume 1, Issue 8 |
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| The Use of Unlicensed Aides to
Provide PT in NJ |
The involvement of unlicensed persons in the provision of physical therapy in particular, or any other professional health care service in general, is one of the most risk-laden issues that we currently face. The combination of diminishing reimbursement and increasing scrutiny of these services greatly magnifies this risk.
The NJ Board of Physical Therapy Examiners has taken very aggressive steps to combat unlawful delegation to, or treatment by, unlicensed persons. It has done so by issuing high monetary penalties and actions against licensed Physical Therapists.
We first must understand that, though we often use the term "aide", it is not specifically addressed or defined in the NJ PT licensing statute or regulations. What is described, however, is that a license as either a PT or PTA is "required to practice, assist at, physical therapy". As such, those not so licensed are not permitted to practice or assist at PT, and are considered "unlicensed persons" in these regulations. Such persons could be "Aides", receptionists, office personnel, or any other job title.
The role of such aides, or any "unlicensed person", is fairly well described in the regulations of the NJ State Board of Physical Therapy Examiners below:
N.J.A.C. 13:39A-2.4 Delegation by a physical therapist to unlicensed persons
(a) Licensed physical therapists may delegate to unlicensed persons routine tasks relating to the cleanliness and maintenance of equipment and the physical plant and the management of the business aspects of the practice and such other assignments with respect to patient care as may be specifically made by the physical therapist, including transporting the patient, positioning of the patient and assisting with the undressing and dressing of the patient.
(b) A physical therapist shall not authorize or permit an unlicensed person to engage in the following activities:
1. Advise, teach, or instruct patients concerning their condition or disability;
2. Carry out testing or evaluation procedures;
3. Make notations in the patient's record in relation to clinical treatment;
4. Place electrodes of any kind on the skin;
5. Administer any modalities.
6. Instruct and/or perform therapeutic exercise(s) and/or therapeutic activity(s); and
7. Provide therapeutic massage.
As we see, the tasks directly related to patient care are extremely limited. The role of the unlicensed person under NJ law & regulation is really confined to a supportive one, and not a clinical one. This point is made even more clearly, when we consider the comments & responses made by the Board during its mandated 5-year "sunset review", regarding Aides. These responses are generally considered legally binding, as they are the published opinions of the agency responsible for regulating PT practice in NJ.
From NEW JERSEY REGISTER, VOLUME 33, NUMBER 14, MONDAY, JULY 14, 2001, RULE ADOPTION COMMENT: A commenter questions whether the current practice of their physical therapists would be in accord with the proposed amendment to N.J.A.C. 13:39A-2.4(b)6. The commenter states that many of its patients are elderly and need more supervision in order to finish their exercises on a timely basis and that their rehabilitation technicians are instructed to notify the therapist should there be any corrections or questions from the patient in the exercise procedure or technique. The commenter also would like to know if the amendments are subject to change or permanent. RESPONSE: The Board has considered the comment and finds that it is not in the best interest of patients to have anyone other than a licensee involved in treatment. The Board notes that its rules are subject to review at least every five years, but may be amended at any time. COMMENT: Several commenters request that the Board clarify what is meant by "therapeutic activity(s)" in paragraph (b)6. The commenters question how the use of this term differs from the New Jersey statutory definitions of occupational therapy, N.J.S.A. 45:9-37.53, which states that "occupational therapy utilizes task oriented activities adapted to prevent or correct physical or emotional deficits as well as to minimize the disabling effects of those deficits on the life of the individual." RESPONSE: The Board states that the term means any activity that has a therapeutic value and is different from a task oriented activity supervised by a licensee. COMMENT: A commenter asks the Board to clarify its position regarding the delegation of tasks by physical therapist assistants to unlicensed persons. RESPONSE: A physical therapist assistant may delegate activities as provided in N.J.A.C. 13:39A-2.4(a). care
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| For Your Information - Q & A |
Question:
Our practice act addresses the fact that we cannot take radiological studies. Does this prohibit us from ordering radiological studies?
Response:
This requires a somewhat nuanced response, because the Act appears to neither authorize nor prohibit this, and does not require referral and/or consultation. As such, an argument could be made that a consultation request from a PT to a Radiologist would be totally permissible, though likely non -reimbursable for the Radiologist. It would not likely be an "order" in the literal sense.
Question:
I have been under the impression that if a client has a referral from a doctor to receive treatment - that the PT was allowed to evaluate that client, then submit a Plan of Care request authorization to initiate client service. The carrier would review and then provide authorization to institute care. I have been informed by NJ Care that before I can evaluate a Client - the Insurer must receive the request first from the Doctor. This seems to be unreasonable - it now seems the Insurer is placing itself between the Doctor and Client to review the Doctors Care Plan? Referral now seems akin to a prescription? Is this allowed by state law under No Fault?
Response:
First, understand that payer policy does not determine what we are "allowed" to do; it only determines if and how we will paid. The PIP statute requires referral as a condition for physical therapy treatment to be reimbursable, it does not require prescription. The regulations of the NJ Board of Physical Therapy Examiners define referral as follows:
"Referral" means the forwarding of a patient for professional services by one health care professional to another health care professional or health care entity which provides or supplies professional service, or the request for establishment of a plan of care by a health care professional, including the provision of professional services or other health care devices.
Given the above, it is certainly within your ability and rights as a provider to challenge the policy of NJ Care, and these references might encourage you to do so. As you see in the attached response that we issued in 8/08 on this same subject; providers do have the right to ADR in such cases. You might also copy the NJ Department of Banking and Insurance on your correspondence to this payer, as they have the authority for interpreting the PIP statute.
References:
N.J.5.A. 39:6A4
N.J.A.C. 13:39A-2.1 Definitions
One of my patients demanded that we not use a sign in sheet as it is a violation of HIPPA. Please advise on this.
Question:
May physicians offices use patient sign-in sheets or call out the names of their patients in their waiting rooms?
Response:
Yes. Covered entities, such as physician's offices, may use patient sign-in sheets or call out patient names in waiting rooms, so long as the information disclosed is appropriately limited. The HIPAA Privacy Rule explicitly permits the incidental disclosures that may result from this practice, for example, when other patients in a waiting room hear the identity of the person whose name is called, or see other patient names on a sign-in sheet. However, these incidental disclosures are permitted only when the covered entity has implemented reasonable safeguards and the minimum necessary standard, where appropriate. For example, the sign-in sheet may not display medical information that is not necessary for the purpose of signing in (e.g., the medical problem for which the patient is seeing the physician). See 45 CFR 164.502(a)(1)(iii).
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| Do You Employ Persons Excluded from Medicare and Medicaid Reimbursement? |
The Centers for Medicare and Medicaid Services ("CMS") will not accept healthcare claims based on work done by "excluded persons". In addition, no state Medicaid claims are allowed to be presented to CMS for payment based on work done by exclude persons.
Excluded persons are persons having committed a crime related to the provision of health care, (e.g.; criminal convictions related to healthcare programs as well as to controlled substances) or having engaged in conduct characterized as unacceptable in the provision of health care (e. g.; sexual assault or patient abuse).
Federal law prohibits any payment made by Medicare, Medicaid or any of the other federal health care programs for any item or service furnished by an excluded individual or entity, or at the medical direction or on the prescription of a physician or other authorized individual who is excluded when the person furnishing such item or service knew or had reason to know of the exclusion.
The focus is not on the relationship but on the payment. If the Office of the Inspector General excludes a person from Medicare, the state must exclude that person from that state's Medicaid program.
Once exclusion of a health care employee occurs, health care providers may employ or contract with excluded persons, but may not allow excluded persons to provide or to direct the ordering or delivery of services or supplies, or to undertake certain administrative duties. This applies whether or not direct care activities are involved as long as any part of the task is reimbursed by federal program dollars. Providers that utilize staffing agencies must be sure that the agencies are screening potential candidates to ensure that they have not been excluded prior to being sent to providers for work. Providers must develop and enforce contractual agreements to ensure prescreening occurs by the staffing agencies.
Potential liability for employing or contracting with excluded individuals and/or entities includes for the excluded individual/entity submitting claims: $10,000 fine for each item/service claimed or "caused to be" claimed; plus treble damages of the amount claimed for each item/service; plus extension of any existing exclusion period. Reinstatement is not automatic after exclusion and providers must apply for reinstatement. A violation also potentially amounts to a false claim under Federal False Claims Act. This provides a separate basis for administrative sanctions or exclusion.
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Mailly Inglett & Barmak, LLC |
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Ken Mailly, PT, MPA, NJ Lic. # NJ40QAOO335900
Ken is a graduate of the State University of New York at Downstate Medical Center, and completed his Master's in Public Administration at Seton Hall University, with a concentration in Health Care Policy and Management. He is also certified as an Ergonomic Specialist, and as a Rehabilitation Agency Medicare Surveyor.
In addition to his graduate studies, with well over 2,500 hours of continuing physical therapy education, Ken has amassed an extremely diverse and extensive knowledge of the clinical practice of physical therapy, rehabilitation, and practice management. Ken's primary clinical focus is in orthopedics, chronic soft tissue disorders, and management of patients with bleeding disorders.
Along with this clinical knowledge base, Ken has devoted the last 10 years to the study of regulation, legislation, and reimbursement for physical therapy & rehabilitation services. He has served as an expert witness, on behalf of both plaintiffs and defendants, in numerous malpractice cases. He has also been consulted on state, federal, and third party payer inquiries regarding physical therapy and rehabilitation billing, regulatory, and legal issues.
Ken is a partner in Mailly & Inglett Consulting. His focus is on compliance with professional standards, state and federal regulations, as well as practice management strategies.
Barry G. Inglett, PT, CHT, Cert. MDT, NJ Lic # NJ40QA00146200
Barry is a graduate of Columbia University, a Certified Hand Therapist and a Credentialed McKenzie Therapist. He is a physical therapist and co-owner of Wayne Physical Therapy & Spine Center, a private practice established in 1977. Barry is also a partner in Mailly & Inglett Consulting, working with both physical therapists and Payers.
Barry is a guest lecturer for UMDNJ's Physical Therapy Program as well as a clinical instructor for several colleges including Columbia University, New York University, Temple University, Stockton State College, Kean College and the University of Medicine and Dentistry's Physical Therapy Program. He is also an instructor for HMW (Human Mechanical Wellness) Seminars, specializing in mechanically oriented treatment programs for the spine and extremities.
Barry has been retained by numerous insurance companies as well as the New Jersey Attorney General's Office offering expert witness testimony in physical therapy practice. He has been involved in utilization review and reimbursement issues in physical therapy for over 20 years. Barry also instituted, and was retained as the lead expert, in the largest PT fraud case in NJ history (Cobo v. MTF). He also served as a physical therapy consultant from 1997-2005 for Horizon Healthcare running the NJ Plus pre-certification program. Barry has served on the New Jersey Board of Physical Therapy Examiners in the past for eight years and has also served as the Chairman of the Board of Physical Therapy Examiners.
David S. Barmak, Esq.
David S. Barmak, Esq. received a JD from Cornell University and a BA from Duke University. The Law Offices Of David S. Barmak, LLC was established in 1984. David is licensed to practice law and has clients in the states of New York, New Jersey, Pennsylvania and Connecticut.
David's legal focus is in the areas of corporate compliance, risk management, human resources and operational legal affairs.
David has a strong background in operations, having served as both the Associate Administrator and General Counsel for a large New York Certified Home Health Agency, initiating and directing a New York Licensed Home Care Services Agency as well as owning and operating a Durable Medical Equipment company. David also provides defense of enterprises, directors, officers and other professionals accused of misconduct.
For more information, please contact us:
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| © Copyright, 2010. Mailly Inglett & Barmak, LLC. All rights reserved. No portion of these materials may be reproduced by any means without the advance permission of the author. | |
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