NEWS AND VIEWS FOR PTs
A complimentary newsletter from
MAILLY INGLETT & BARMAK, LLC
Educators and Consultants to Physical Therapists
OCTOBER, 2010 - Volume 1, Issue 10 |
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The Use of Unlicensed Aides to Provide PT In
New Jersey |
In August we published an article entitled "The Use of Unlicensed Aides to Provide PT in New Jersey". In that article we made it clear that it is a violation of the New Jersey Physical Therapy Rules and Regulations to utilize unlicensed aides in a capacity that is not consistent with the Regulation N.J.A.C. 13:39-2.4 (Delegation by a physical therapist unlicensed persons).
Unfortunately, we have had the opportunity to consult with individuals who have been reported to the Board of Physical Therapy Examiners (BPTE) regarding their utilization of unlicensed aides. We would add that this is probably one of the most common complaints sent to the Board for investigation.
When the Board of Physical Therapy receives a complaint, they are obligated to investigate that complaint. They will request not only all patient-related documentation, but also billing records, patient schedules and sign-in sheets. They will also demand an appearance of not only the physical therapist, but any physical therapy aides in for an investigative inquiry. The inquiry will not only involve specific allegations or concerns arising from a complaint, but will include "your global practice of physical therapy". Simply put, this means any and all aspects of your practice, not just your use of aides are opened up to scrutiny. During such inquiries, it sometimes becomes apparent that the physical therapist is utilizing unlicensed aides to provide physical therapy treatment, which is a violation of the above regulation.
As consultants, we always advise physical therapy practitioners to develop a policy and procedure that specifically outlines what an aide can and cannot do. Although there have been complaints of unlicensed aides actually performing physical therapy intervention; such as use of modalities, applying and removing electrodes, etc.; simply allowing an unlicensed aide to correct an exercise technique would also be considered a violation of the above regulation.
Staff members always want to help patients, and although unlicensed aides may understand that an individual is performing an exercise incorrectly, it is a violation of the New Jersey Physical Therapy Rules and Regulations to allow that unlicensed aide to correct or instruct the patient in any exercises. We must understand that, for medico-legal purposes, an exercise is equivalent to a medical or surgical procedure. In doing so, we might better understand the intent of such regulations.
In the cases in which we have been involved, we have seen individuals who have received significant fines for their utilization of unlicensed aides, though in other cases the Board felt that the physical therapy aides were being utilized appropriately. We strongly encourage you to review or develop a policy on your use of unlicensed personnel to prevent violating the New Jersey Physical Therapy Rules and Regulations. If you are even requested to appear before the BPTE, it would be prudent to contact your advisors to discuss this prior to moving forward with any actions.
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| For Your Information - Q & A |
Question:
We have a therapist in one of our offices who is credentialed as an in-network provider with Oxford but no one else in that office is in-network with Oxford (Oxford closed their Network years ago and we can't get anyone else in...). She went on vacation last week and one of her patients has only in-network benefits. When he was treated by one of the other therapists that week, can the treating therapist sign their personal name to the note and add an addendum that they treated the patient for the primary therapist while on vacation and then bill under the primary PT's name? Would this be seen as use of Locum Tenens and be acceptable billing practice?
Response:The question is whether an insurer will accept a Locum Tenens is solely determined by the insurer in question, however billing under another therapists' name is a highly risky practice without a written contractual agreement between those two therapists. We also question whether the insurer would even recognize the covering therapist as a Locum Tenens, rather than a non-credentialed, non-participating associate. Also keep in mind that this answer does not apply to situations where Medicare is the insurer.
Question:
Under PIP I understand we need a Medical Referral, but does that entitle the Auto carrier to insist upon a "prescription" from the referring physician to support the PT's Treatment Plan? I sent in a letter of appeal to the denial of certain modalities for a client, and was told that the only person who can appeal a PT Care Plan is the referring Doctor - NOT the treating PT!? Is this accurate?
Response:
There is no requirement for "prescription" in either the PIP statute or regulations. Referral is certainly not the same thing as prescription, and a definition of referral in relation to Physical Therapy is contained in our regulations, as outline below. As we see, referral is simply the forwarding of a patient, and not prescribing the care that a patient may or may not need. The particular carrier may have a policy regarding internal appeals, which is unfortunately their prerogative, but appeals for Alternate Dispute Resolution do not need to be made solely by the "referring Doctor".
Reference:
N.J.A.C. 13:39A-2.1 Definitions
"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.
http://tinyurl.com/62q6xe
5. Demand for Arbitration
Any part may file a written Demand for Arbitration with the FORUM by U.S. mail, by personal delivery at the FORUM's office or online.
Question:
I understand that destruction of Client files/records must be performed in such a manner as to obliterate any possible way of reconstruction. Someone has alleged that Medicare has a "specific" requirement to use a "cross shredder" - can you advise if this is accurate or is a regular shredder suitable to meet the requirement of appropriate record destruction?
Response:
We are aware of no reference within Medicare regulations or the statute that addresses shredding of documents. If "someone" has such a reference, we encourage you to ask for it. The "Fair and Accurate Credit Transactions Act" however, does address disposal of documents in regulations adopted by the Federal trade Commission (FTC), effective 6/1/05. These rules are excerpted below and, as you see, do not require a specific type of shredder for disposing of documents. In fact, these rules don't specifically require shredding at all, only "proper disposal". Keep in mind that the applicability of these regulations to health care providers is still somewhat in question, though it is certainly good practice to properly dispose of documents in accordance with accepted standards such as these.
Reference:
Disposing of Consumer Report Information? New Rule Tells How:
What is 'proper' disposal?
The Disposal Rule requires disposal practices that are reasonable and appropriate to prevent the unauthorized access to - or us of - information in a consumer report. For example, reasonable measures for disposing of consumer report information could include establishing and complying with policies to:
- burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed;
- destroy or erase electronic files or media containing consumer report information so that the information cannot be read or reconstructed;
-conduct due diligence and hire a document destruction contractor to dispose of material specifically indentified as a consumer report information consistent with the Rule. Due diligence could include:
- reviewing an independent audit of a disposal company's operations and/or it's compliance with the Rule;
- obtaining information about the disposal company from several references;
- requiring that the disposal company be certified by a recognized trade association;
- reviewing and evaluating the disposal company's information security policies or procedures.
Source:
http://www.ftc.gov/bcp/edu/pubs/business/alerts/alt152.shtm
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What To Do If Federal Agents Threaten to Knock Down Your Door | |
It is 7:30 AM on Wednesday. Ten federal agents with guns and search warrants appear at your door. They threaten to break the door down unless granted admission. Your employees open the door. The federal agents enter and then lock your doors, telling your employees that they may not leave. The federal agents confine your employees to one office while the agents literally begin to cart off records of all types, including but not limited to, active and inactive medical records, contracts, employment records and billing documentation. The federal agents even appear ready to cart off your computers because of the information that might be on the computer hard drives.
If you think this cannot or does not happen, be assured that it can and has. If it did, would your employees know how to respond? Have your employees been properly trained to know how to respond? The procedures discussed below apply to both scenarios. Compliance Program
An effective compliance program helps insure your practice is complying with state and federal statutes, rules and regulations. Such a program must also establish a policy to deal with an orderly response to government investigations to enable the practice to protect its interests as well as appropriately cooperate with the government investigation. A well rehearsed policy and procedure is required to address either of the above scenarios.
Request for Interview
When government agents or investigators appear on-site and request an interview with an employee, the Owner(s), Compliance Officer and/or Compliance Attorney must be notified immediately. An employee is under no obligation to consent to an interview although anyone may volunteer to do so. If an interview is agreed to, the staff member should always be polite and ask for the name, agency affiliation, business telephone number and address of all investigators as well as the reason for the visit. The investigator must be asked if there is a subpoena or warrant to be served and for a copy of same. The interview may be stopped at any time with a request that the investigator return when the Compliance Attorney can be present. It is strongly urged that the owner(s) not consent to any interviews without the Compliance Attorney being present. While employees have a right to their own individual legal counsel, it is recommended that the practice's Compliance Attorney be present during any interviews and that staff be advised that the practice's Compliance Attorney will at least initially be available to advise the employees as to how to proceed; however, it must be made clear to the employees that the Compliance Attorney represents the practice and not them. If an employee chooses to not respond to the investigator's questions, the investigator has the authority to subpoena the employee to appear before a grand jury. Any staff member contacted by an investigator outside of work should also immediately notify the practice owner(s) and provide as much information and documentation about the investigation as is possible. This notification must find its way to the Owner(s), Compliance Officer and/or Compliance Attorney.
The Search
The employee should request that the investigator wait until either the Compliance Officer, Compliance Attorney or Owner(s) arrive. Whoever arrives first is referred to going forward as "the employee in charge". While the investigator waits for the employee in charge, the employees must not alter, remove or destroy permanent documents or records of the practice. Once an investigation begins, the destruction portion of any policy on record retention is suspended. If the investigator presents a search warrant or warrant, the investigator has the authority to enter the premises, search for evidence of criminal activity and seize only those documents listed in the warrant. No staff member has to speak to the investigator but must provide the documents requested in the warrant. A copy of the warrant with the affidavit providing reasons for the issuance of the warrant must be obtained.
All staff members should notify the investigator that they request an opportunity to consult with the Compliance Attorney before the search begins and certainly before consenting to any interviews with the investigator. If the Compliance Attorney can only be reached by telephone, put the Compliance Attorney directly in touch with the investigator. The Compliance Attorney will advise the investigator that the search is objected to, unjustified because the provider / supplier is willing to voluntarily cooperate with the government and that the search will violate the rights of the provider / supplier and its employees. Under no circumstances should staff obstruct or interfere with the search. If cooperation is required, then staff members should indicate that their cooperation does not constitute consent to the search. A log of all documents, with copies if possible, and the information contained in the documents given to the investigator, should be tracked. This is especially true if medical records are given to the investigator. A parallel inventory of the documents seized is the ideal way to keep track of what documents are provided to the investigator. If the investigator makes it difficult to copy and itemize documents seized during the search, the employee in charge must request an inventory of the seized documents before the investigator leaves the premises. A copy of the warrant should be annotated with the date and time that the search was completed as well as signed by the investigator with his / her full title, address and telephone number.
The employee in charge should remain with the investigator at all times. Investigators should never be left alone on the premises and no employee, other than the employee in charge, should be left alone with the investigator.
It is essential, as part of an effective compliance program, that the employees of a provider/supplier be fully familiar with the appropriate procedure to follow should a government agent or investigator unexpectedly appear at your door. Your Compliance Attorney should be notified immediately of any such visit, along with the Owner(s) and/or Compliance Officer, any or all of whom will then take charge of the situation, direct employees and cooperate while minimizing both disruption and potential liability. |
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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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