NEWS AND VIEWS FOR PTs
A complimentary newsletter from
MAILLY INGLETT & BARMAK, LLC
Educators and Consultants to Physical Therapists
APRIL, 2011 - Volume 2, Issue 4 |
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Professional Licensing Boards:
Whose Interest Are They
Really Protecting? |
A physical therapist, ("Therapist"), initiates a small claims action against a patient for $140, the amount due from uncollected co-payments. In retaliation, the patient files a complaint with the State Board of Physical Therapy Examiners, ("Board"), claiming professional misconduct. The Board sends a letter to the Therapist indicating that it has received a complaint about professional misconduct but not disclosing who the complainant is or what the complaint is based upon. Nevertheless, the Board asks for a copy of this particular patient's chart and indicates that it will review the global practice of the Therapist during its investigation into the Therapist's practice. What should this Therapist do? After all, the Board's primary mission is to protect the Therapist, right? In reality, nothing could be further from the truth. A professional licensing board's primary mission is to protect the consumer! Without judging the appropriateness of this primary mission, for purposes of this article let it suffice to say that many therapists mistakenly believe that their professional licensing boards are "on their side". This often results in a therapist responding to a professional licensing board's inquiries without consulting a competent healthcare consulting team,including a healthcare attorney and a Physical Therapist familiar with the function of the board. In this Therapist's situation, he is making a potentially serious mistake - possibly even jeopardizing his license and the future of his practice - if he were to send a copy of the patient's chart to the Board without consulting a healthcare team. Whether a therapist wants to acknowledge it or not, the board is in an adversarial role with respect to its licensees. Therapists need to understand the following sequence of events once a professional licensing board receives a consumer complaint (oftentimes a current or former patient) if they are to maximize protection of their licenses and livelihood:
- Once a professional licensing board receives a complaint by a consumer, it initiates an investigation. If the consumer is a patient, which is not always the case, the board will request a copy of the chart as part of its evaluation and investigation. The board acts to determine whether alleged violations of law have occurred and if so what the appropriate sanction is to be applied. A therapist should, upon receiving a letter from the board asking for a copy of the chart, immediately retain a healthcare team. Absolutely no information should be exchanged between the therapist and the board regarding the patient other than through the healthcare attorney. A healthcare attorney, aided by expert therapists as consultants, needs to come to an understanding about the factual and legal issues that could be implicated in a disciplinary proceeding before the patient's chart is submitted to the board and well before the therapist appears for questioning by the board.
- Sometimes an investigation by the board can be averted if the appropriate response is submitted by the healthcare attorney to the board. Some complaints can be addressed with minimal explanation because the facts clearly speak for themselves. A board must consider all of its investigatory efforts in light of how best to protect the consumer. The consumer is not protected if the board does not make any inquiry of the therapist; however, a rational explanation addressing the issue raised in the patient's complaint may satisfy the board that it has adequately addressed the complaint and the investigation can end at this point.
- Other times, however, the conduct under investigation is problematic and a full inquiry is necessary for the board to fulfill its due diligence requirements. In these situations, the healthcare attorney and expert therapist consultants must anticipate the issues of concern preoccupying the board. The board will usually not give any insight into the nature of the complaint by the patient. In fact, the board will certainly not give any information as to who filed the complaint. There are, however, typical issues that the board will review at any given time, as well as certain specialized issues that the board is focusing on at one time or another. A thorough, realistic and honest assessment of the therapist's documentation, billing and therapy practices can usually expose the issues that will be focused upon by the board. When it is fairly certain that unlawful behavior has been or will be discovered, it is sometimes a reasonable option to openly admit the wrongdoing and present a compliance program that incorporates treatment, counseling, education or other remedial steps. The risk of the therapist having a candid discussion with the board without the assistance of a healthcare attorney is that the therapist may make an admission of unlawful behavior without combining such an admission with a remedial program in exchange for an agreed upon response, (e.g.; minimal or no sanctions), by the board. The goal in negotiations with the board must be the retention of an unrestricted license to practice therapy with minimal or no monetary penalties.
- At still other times, the best approach is to admit nothing and to put the board to its proofs that misconduct occurred. The therapist must be thoroughly prepared to provide testimony before the board, including explanations for anticipated questions as well as appropriate demeanor while delivering the explanation.
In summary, a therapist receiving a letter from the board requesting a patient chart and / or explanation of some incident as part of the board's routine inquiry and investigation, must be viewed in the context in which it is sent: an adversarial party requesting full disclosure to protect a third party - namely the consumer - and not to protect the licensee who is the target of the board's inquiry. A healthcare attorney, aided by a team of expert therapists, should be engaged to ensure that the therapist's explanation as to the care given a particular patient is presented properly as well as the global practice in which the therapist provides therapy, both of which are routine areas of inquiry by the board.
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Question:
We are aware that a clinical treatment note should always be dated on the date it is written. However our office also keeps notes on Insurance information such as dating a documenting when we receive verifications, authorizations, etc...
If we receive an Insurance authorization via fax on Friday but do not get a chance to document and enter into our records until Monday what date should we legally enter it.
Can we back date it Friday (the date we received it) or do we have to date it on Monday and indicate that we received it on Friday or does it just not matter because it is not part of the clinical medical record and just office records?
Response:
You are correct that there is a time requirement in the NJ regulations for notations made in the patient record, rather than the "clinical medical record". As you see in the highlighted reference below, such notations must be made "contemporaneous" with service delivery. In practice, the board has generally defined this to mean that services will be documented before the next date of service.
These regulations are specific to documentation in the patient record, and while authorizations are obviously important to maintain for payment purposes, it is doubtful that this time requirement would apply to such documents.
Reference:
N.J.A.C. 13:39A-3.1 Patient records
(a) A licensed physical therapist shall prepare and maintain for each patient a contemporaneous, permanent patient record that accurately reflects the patient contact with the licensed physical therapist whether in an office, hospital or other treatment, evaluation or consultation setting.
8. A contemporaneous note that accurately represents the services rendered during the treatment sessions including, but not limited to, the components of intervention, the patient's response to intervention and current status;
11. Changes in the plan of care which shall be documented contemporaneously.
Question:
Do you know what is the minimum amount of hours that an employee must work before requiring health benefits? (I don't know if this is regulated by the state, federal government or if it is policy by the insurance company). I have a PTA whose divorce will be finalized this week and will be removed from his Health insurance plan. She only works 10 -15 hrs / week.
Response:
There is no requirement at the present time, under NJ or Federal law, for employers to provide "health benefits" to any employee.
Question:
Did you know that certain Horizon BCBS plans DO pay for 97001? I understood that their "excuse" for not paying for 97001 was because the referring physician already evaluated the patient, therefore it would be a duplication of service.
Can BCBS pay for the PT evaluation in some plans and not the others? There are inconsistencies if they follow their own logic.
Response:
While we certainly agree that this policy is illogical and inconsistent, there are no laws or regulations in NJ that require insurers to reimburse providers for this, or any other specific CPT codes. This is one of issues that is addressed in S2104/A3074, which is why we insist that it be included in the bill and why we are so strongly supporting it. See the language below contained in bills.
Reference: http://www.njleg.state.nj.us/2010/Bills/S2500/2104_I1.HTM
3 . (New section) Notwithstanding any applicable claims authorization, processing, and payment provisions of P.L.1999, c.154 (C.17B:30-23 et al.) for health care claims, or any other law concerning any other health benefits plan claims, a payer or payer's agent shall not amend a claim for reimbursement for any covered physical therapy benefit by changing the diagnostic or treatment code assigned to the physical therapy benefit provided by the claimant |
Conducting Proper
Workplace Investigations |
Physical Therapy practice owners are often faced with determining what actually occurred when one or more employees engage in possible workplace misconduct. It is essential for you to be able to properly conduct workplace investigations, without adding liability exposure to the practice while doing so. Your investigation must be thorough and unbiased.
Many different problems can lead to an investigation: substance abuse, discrimination complaints, harassment complaints, threats by one employee against another employee, etc. The goal of any investigation is to understand the underlying reasons for the problem so that you can take corrective action. However, you must also be knowledgeable about state and federal employment laws, be thorough and objective and protect the privacy rights of employees. No one said being the practice owner was going to be easy!
To begin, must you do an investigation when you receive an employee's complaint? YES! There are numerous federal laws that actually mandate investigations upon receiving a complaint. For example, job discrimination laws, health and safety laws, background and credit check laws as well as drug-free workplace laws.
It is beyond the scope of this article to give all of the details that you must be aware of when conducting an investigation; however, please be mindful of the following issues that potentially increase liability for the practice:
- Personnel Files - maintain appropriate confidentiality as you and others who have a job related need to know access the files.
- Searches at Work - respect reasonable expectations of privacy that employees have at work.
- Drug testing - ensure that all of the appropriate releases and procedures are in place prior to drug testing current employees.
- Defamation - remember, defamation is the communication of false information about a third person to a third party, either intentionally or with reckless disregard for its falsity.
- Retaliation - employees who file claims in good faith are protected under numerous laws from retaliation for having filed such claims.
There are certain steps that are common to any investigation. These include recognizing when an investigation is required; determining what the goals of the investigation are; identifying the appropriate investigators; identifying potential witnesses and documents for review; developing a written list of questions to use during the interviews; determine proper security for the records that will be reviewed and generated during the investigation; and consult your compliance attorney to ensure that the procedures being followed minimize liability exposure for the practice and maximize the use of attorney - client privilege as needed. |
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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, 2011. 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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